B2B General Terms and Conditions of Sale

1. General information and scope

1.1. The offer and sale of products on the site www.progold.com are governed solely by these general terms and conditions of sale; any general terms and conditions of purchase of the Customer shall not apply. The products are intended for business Customers. By confirming a purchase order, the Customer unconditionally and bindingly accepts these general terms and conditions of sale, declaring to have read and accepted all the information contained herein.

1.2. The Products displayed / indicated / listed on the site www.progold.com are sold exclusively by Progold S.p.a., with registered office in Italy, Via Postale Vecchia n. 26/a – 36070 Trissino (VI), Tax Code and VAT No. 02623140247, registered with the Vicenza Companies Register under no. 261346 (hereinafter "PROGOLD").

1.3. The sale of PROGOLD Products listed on the site www.progold.com is aimed exclusively at Customers who qualify as "professionals" and not as "consumers" pursuant to Art. 3 of Italian Legislative Decree No. 206/2005, as amended.

1.4. The information and descriptions of the Products contained on the site www.progold.com are provided for information purposes only and do not constitute a contractual offer by PROGOLD nor an offer to the public pursuant to Art. 1336 of the Italian Civil Code, and shall not be considered binding on PROGOLD for any commercial relationship.

2. Formation of the contract

2.1. In order to purchase products, the Customer must register on the site www.progold.com.

2.2. During registration, the Customer declares, under its sole responsibility, that it acts as a professional pursuant to Art. 3 of Italian Legislative Decree No. 206/2005, as amended, and that every purchase will therefore be made in the course of its business, trade or profession. Upon completing registration, the Customer declares that it accepts these general terms and conditions of sale.

2.3. The Customer undertakes to carefully read these general terms and conditions of sale before submitting a purchase order and completing the process on www.progold.com; submission of the purchase order by the Customer implies acceptance of these general terms and conditions of sale. The Parties agree that clicking the acceptance button ("point and click") is equivalent to written approval pursuant to Art. 1341 of the Italian Civil Code.

2.4. Once registered, the Customer may log in to the reserved area of the progold.com and xbrax.com websites and access the shop area to make purchases.

2.5. The purchase order submitted is binding on the Customer.

2.6. PROGOLD will send the Customer an email of acceptance and confirmation ("Order Confirmation") of the order received, or its rejection, to the email address provided at registration. The Order Confirmation will contain information on the Products purchased, a detailed indication of the price, shipping costs, applicable taxes and the chosen means of payment, and a reference to the applicable general terms and conditions of sale. If, within ten working days of the order being placed or of receipt of payment (for orders requiring advance payment), Progold has not accepted the Customer's proposal, the proposal is deemed rejected. The Order Confirmation will be available in the Customer's reserved area and will be archived and retained for the time necessary to fulfil the purchase request and, in any event, within the terms required by law for contractual and tax purposes.

2.7. These general terms and any special terms of sale indicated in the order confirmation may not be derogated from by the parties except in writing, and supersede and replace any prior agreement between PROGOLD and the Customer.

3. Compliance with Italian Legislative Decree 231/2001 and Code of Ethics

3.1. The Customer declares that it is aware of, and undertakes to comply with, the principles contained in PROGOLD's Organisation, Management and Control Model adopted pursuant to Italian Legislative Decree 231/2001 and in PROGOLD's Code of Ethics, both available on the company website.

3.2. Failure to comply with the principles of this article constitutes a serious breach of contract and may result in termination of the business relationship pursuant to Art. 1456 of the Italian Civil Code, without prejudice to compensation for any further damage.

4. Place of delivery

4.1. The place of performance of the obligation to deliver the Products is Progold S.p.a.'s warehouse at its registered office in Trissino, Via Postale Vecchia n. 26/a, Italy. The delivery obligation is deemed fulfilled when PROGOLD makes the goods available to the Customer at its warehouses, ready for shipment.

4.2. Any delivery terms (so-called INCOTERMS) agreed between the parties shall govern solely the obligations assumed by each party in relation to the chosen shipping arrangements, and shall not alter PROGOLD's place of performance, which remains its warehouse at its registered office.

5. Shipping

5.1. Without prejudice to the fact that the place of delivery of the Products is at Progold's premises, the parties may agree delivery terms with reference to the INCOTERMS published by the ICC of Paris, which shall govern solely each party's obligations in managing the shipment.

5.2. Whatever delivery terms are agreed between the parties, PROGOLD's risk passes at the latest when the first carrier collects or takes charge of the Products.

5.3. In the absence of specific instructions, delivery terms are deemed to be EX WORKS at PROGOLD's premises, Via Postale Vecchia n. 26/a – 36070 Trissino (VI).

5.4. Unless otherwise agreed, any insurance of the goods during transport, customs clearance of the products and any other related ancillary operation, as well as payment of customs duties and taxes, are borne by the Customer.

6. Packaging of the Products

6.1. PROGOLD packages the Products for delivery or shipment in the standard form usual for such Products. Should the Customer request special packaging, or should the shipping method require it in PROGOLD's judgement, any additional costs will be charged to the Customer.

6.2. PROGOLD is in any event not liable for any damage, breakage, tampering or shortages occurring after the goods have left its warehouses.

7. Delivery date

7.1. The delivery date indicated in the Order Confirmation is purely indicative and not binding on PROGOLD. Any delay in delivery, shipment or transport shall not give rise to any penalty, damages, accrual of interest, or termination, even partial, of the contract, on the part of PROGOLD.

7.2. Should PROGOLD anticipate that it will be unable to deliver the Products by the date indicated in the order confirmation, PROGOLD will inform the Customer and extend the delivery terms accordingly.

7.3. In any event, a delay in delivery shall not be attributable to PROGOLD in the following cases: a) force majeure, including, by way of example: strikes, lack or insufficiency of energy, fire affecting all or part of PROGOLD's premises, insurrection, riots, civil war, war (declared or not); b) delays and/or difficulties in the supply of components or raw materials; c) acts or omissions of the Customer (including, by way of example only, any changes to the order after the contract has been concluded, even if accepted by PROGOLD, or failure to communicate information necessary for the supply of the Products). Such instances of delay not attributable to PROGOLD constitute an independent ground for extending the delivery terms.

7.4. The Customer undertakes to accept delivery of the Products even if partial, early or later than the term indicated in the Order Confirmation.

8. Inspection obligations on receipt of goods

8.1. The Customer must inspect the Products without delay upon receipt.

8.2. Should the Products or their packaging be damaged, or goods be missing, the Customer must raise the appropriate reservations with the carrier, in the manner prescribed for the mode of transport used.

8.3. In any event, any complaints regarding the condition of the packaging, quantity or number of the Products must also be reported to PROGOLD, on pain of forfeiture, in writing by fax, email or registered letter with return receipt, or through the dedicated complaints form on the progold.com site, no later than the third working day following receipt of the goods, following the procedure set out in Art. 10 (Complaints).

8.4. PROGOLD may not in any event be held liable for loss, damage or tampering with the Products occurring during, or caused by, transport, even if it selected the carrier or forwarder.

9. Product defects and warranties

9.1. PROGOLD warrants solely that the Products conform to the specifications set out in the technical data sheet accessible and downloadable from the progold.com and xbrax.com sites, with express exclusion of any other implied or express warranty.

9.2. The warranty runs from the date of delivery of the Products and remains valid for 12 months under the terms and conditions set out in these general terms and conditions of sale.

9.3. Should the Products be recognised as defective, within one month of the outcome of the complaint review, or within such other period indicated by Progold as necessary for verification, PROGOLD will, at its option, replace them, subject to contingent warehouse availability, or credit the Customer the price of the goods returned and acknowledged as non-conforming. In the event of replacement, delivery costs to the Customer will be borne by Progold.

9.4. The parties agree that the warranty does not cover: damage caused by transport, parts of the Products subject to normal wear and/or deterioration, defects arising from inadequate storage conditions and/or improper use of the Products or use other than that for which they are intended according to the technical specifications, and/or alterations made by the Customer and/or third parties without PROGOLD's prior written consent.

10. Complaints

10.1. Any lack of conformity, defect and/or fault in the Products must be communicated in writing through the dedicated form on the progold.com site or in another written form, on pain of forfeiture, no later than: a) 15 days from the date the Customer receives the Products, in the case of apparent defects (i.e. those that a diligent Customer should have discovered); b) 15 days from the date the defects are discovered, in the case of hidden defects, and in any event no later than twelve months from receipt of the Products.

10.2. Complaints raised by the Customer must include all information and documentation necessary to identify the problem, including: a) all order details; b) the PROGOLD invoice number; c) the shipping and receipt dates of the Products; d) the defects found, with reference to the Product's technical data sheet; e) the production batch number shown on the Product's packaging; f) the name and address of the person Progold should contact; g) any photographs and/or documentary evidence of the alleged non-conformity.

10.3. PROGOLD reserves the right to examine the Products subject to the complaint and to assess its merits at its own operating premises in Italy, Trissino, Via Postale Vecchia n. 26/a; the Products alleged to be defective must therefore be made available to PROGOLD, or to the person it designates, for examination at Progold's premises.

10.4. Returns are not accepted unless previously authorised in writing by PROGOLD, and the shipment of an authorised return must be accompanied by the return authorisation document, which may also be PROGOLD's communication accepting the return.

10.5. Complaints or disputes do not, in any event, entitle the Customer to delay or suspend payment for the Products subject to the complaint, nor for any other supplies.

10.6. Any transport costs are borne by the Customer and, should the complaint prove unfounded, PROGOLD may also charge the Customer for inspection costs.

10.7. The Customer's right to damages, reimbursement of any expenses, or termination of the contract is excluded in every case.

11. Limitation of liability

11.1. Except in cases of wilful misconduct or gross negligence, PROGOLD shall not be liable for damages arising from or connected with a lack of conformity (defects or faults) of the Products or with delays in delivery.

11.2. In any event, PROGOLD's liability for defects and faults in the Products may not exceed the value of the product equal to the EX WORKS price paid by the Customer.

11.3. It is expressly agreed that failure by the Customer to comply with the conditions and terms set out in Art. 10 (Complaints) will result in automatic forfeiture of the warranty.

11.4. Without prejudice to the fact that PROGOLD's liability for any defect or non-conformity of the Products is limited to the obligations undertaken in these general terms and conditions of sale, the Customer expressly waives any right of recourse against Progold in connection with the resale of the Products to third parties. The Customer therefore undertakes to hold PROGOLD harmless from any claim for damages brought by subsequent sellers in the distribution chain.

11.5. The warranty and remedies provided for in these general terms and conditions of sale (i.e. replacement or crediting of the Products) replace any other legal warranty or remedy available to the Customer by law. Accordingly, the parties agree that, except in cases of wilful misconduct or gross negligence by Progold, any other liability of Progold (whether contractual or extra-contractual) arising from the Products supplied or their resale (including, by way of example, damages or compensation, loss of profit, etc.) is expressly excluded.

12. Price

12.1. The price of the Products, for the purposes of these general terms, is the price expressly indicated in the order confirmation sent by PROGOLD to the Customer and, unless otherwise indicated, is an EX WORKS price.

12.2. The price shall include any transport, insurance or other charges only if expressly indicated by Progold in the Order Confirmation.

12.3. Transport and shipping costs, insurance of the goods during transport, customs clearance of the products and any other related ancillary operation, duties and customs taxes are always borne by the Customer.

13. Payment

13.1. Payment of the price must be made strictly within the terms and in the manner indicated in the Order Confirmation.

13.2. Payment shall be deemed valid only if made in Euro, directly to PROGOLD, in the manner indicated in the "Order Confirmation", and is deemed made only when the entire agreed sum (inclusive of any expenses and charges) becomes irrevocably available to PROGOLD at its bank in Italy.

13.3. Unless otherwise indicated, the price must be paid in full, in advance, by bank transfer.

13.4. In any event, all payment costs and fees, including any negotiation or confirmation of documentary credits or guarantees of any kind, are borne by the Customer.

13.5. Where payment is required to be secured by a bank guarantee, the Customer must provide PROGOLD, at least 8 days before the delivery date to the forwarder or the date the Products are made available, with an on-demand bank guarantee issued and confirmed by a leading Italian bank in accordance with the ICC Uniform Rules for Demand Guarantees, payable against a simple declaration by PROGOLD that it has not received payment within the agreed terms.

13.6. In the event of late payment of any sum owed to PROGOLD, in addition to default interest at the rate set by the competent authorities pursuant to Italian Legislative Decree 231/2002 and Directive 2000/35/EC, the Customer shall reimburse PROGOLD for debt-recovery costs (including, for example, legal and banking fees).

13.7. The Customer is not authorised to make any deduction from the agreed price, whether relating to a supply subject to complaint or to any other supply (for example, for alleged product defects or for advance payment).

13.8. The Customer may not refuse or suspend payment unless previously authorised in writing by PROGOLD. The Customer may not set off payment against any credit it may have against PROGOLD.

13.9. Payments must be made exclusively through traceable instruments from accounts held in the Customer's name. Cash payments beyond the legal limits, or payments through unauthorised third parties, are not permitted.

14. Retention of title

14.1. It is agreed that the Products delivered remain the property of PROGOLD until full payment has been received.

14.2. Retention of title extends to Products sold by the Customer to third parties and to the price of such sales, within the maximum limits permitted by the law of the Customer's country governing this clause.

15. Customer default

15.1. Should the Customer default, become insolvent, or should there be reasonable grounds to believe that it is unable to duly perform its contractual obligations, PROGOLD may, at its sole discretion, avail itself, cumulatively or alternatively, of one or more of the following remedies: a) treat the Customer as having forfeited any benefit of a term agreed in its favour; b) request suitable bank guarantees (surety or on-demand bank guarantee); c) request performance pursuant to Article 1453 of the Italian Civil Code, without prejudice to the right to damages; d) suspend performance of ongoing contracts until full settlement of any outstanding amounts owed by the Customer, including in relation to previous supplies.

15.2. In any event, all remedies granted to PROGOLD hereunder shall be deemed cumulative and not exclusive of any other remedy available under this Contract or by law, and the exercise of any available remedy shall not preclude the exercise of any other remedy.

15.3. In the event of Customer default, Progold shall be entitled to a penalty payment equal to 30% of the sale price, without prejudice in any event to compensation for further damage.

15.4. Progold is in any event entitled to retain the price received, on account of its further damage.

16. Express termination clause

16.1. In addition to any remedy provided by law or by these general terms and conditions of sale, Progold has the right to terminate each sale contract pursuant to Art. 1456 of the Italian Civil Code, by written communication to the Customer via registered letter with return receipt or another equivalent means proving receipt of the communication (e.g. certified email, courier), where the Customer: a) fails to pay the sale price in full within the agreed term; b) fails to provide the guarantees requested or promised; c) fails to collect the products within the agreed term, without prejudice to PROGOLD's right to obtain payment of the penalty referred to in Art. 15 and to compensation for further damage; d) breaches PROGOLD's Model 231 and/or Code of Ethics referred to in Art. 3; e) engages in corrupt conduct or conduct otherwise not compliant with anti-corruption regulations; f) breaches applicable rules on embargoes and trade or international commerce restrictions.

17. Confidentiality obligations

17.1. All information relating to know-how owned by PROGOLD, as well as other business and commercial information that the Customer becomes aware of during negotiations and performance of the contract (the "Confidential Information"), is to be considered confidential and not disclosable to third parties. The Confidential Information may be used solely to the extent necessary for the proper performance of the contract and the use of the Products.

17.2. For the purposes of these general terms, Confidential Information includes all information regarding production processes, formulas, technical information and know-how, business policies, economic policies, marketing and financial strategies, Progold's customer and supplier lists, and any other information of a confidential nature. "Confidential Information" does not include information that is already in the public domain and part of the state of the art, or that becomes so for reasons not attributable to a breach by the Customer of its confidentiality obligations, nor information that the Customer is required to disclose under the law or directives issued by any public Authority.

17.3. The Customer undertakes to implement all measures necessary to ensure adequate protection of the confidentiality of documents and information received from PROGOLD, and to ensure that this confidentiality obligation is also observed by its employees, collaborators or consultants who, by reason of their role, become aware of such Confidential Information.

17.4. The Customer is liable to PROGOLD for any commercial or reputational damage arising from failure to comply with the provisions of this article.

17.5. The confidentiality obligation shall remain valid and binding on the Customer until the Confidential Information becomes public domain for reasons unrelated to any breach by the Customer of the confidentiality obligations undertaken herein.

18. Customer's compliance obligations

18.1. The Customer undertakes to operate in compliance with applicable anti-corruption, anti-money-laundering and commercial transparency regulations, avoiding any conduct that could expose PROGOLD to liability under Italian Legislative Decree 231/2001.

18.2. The parties undertake not to offer, promise or give undue advantages, directly or indirectly, to public officials or private individuals in order to obtain commercial benefits.

18.3. The Customer undertakes to promptly report any conflict-of-interest situations that could affect its business relationship with PROGOLD.

18.4. The Customer warrants that the Products purchased will not be exported or re-exported to countries subject to embargoes or trade restrictions, nor used in violation of applicable national or international regulations.

18.5. The Customer undertakes to cooperate, within the limits of the law, with any checks carried out by PROGOLD's Supervisory Body in relation to compliance with Model 231.

19. Industrial property rights

19.1. The Customer undertakes not to disclose, publish, copy, imitate or otherwise use in any way any part of the patents and/or models and/or designs and/or trademarks and/or technical know-how owned by PROGOLD.

19.2. The Customer is liable for all costs, damages, expenses and losses suffered by PROGOLD as a result of any infringement of patent and/or trademark rights and/or rights in models and designs, or as a result of improper disclosure of know-how, connected with this contract or the use of the Products.

19.3. The Customer must promptly notify PROGOLD of any information or fact of which it becomes aware that may be relevant to the protection of patent and/or trademark rights and/or rights in models, designs and know-how.

19.4. The Customer further holds PROGOLD harmless from any claims brought by third parties based on an alleged infringement of intellectual or industrial property rights occurring during the supply of the Products and their use by the Customer.

19.5. In the case of Products made to specifications provided by the Customer, the Customer declares that such specifications do not infringe the industrial property rights or confidential information of third parties, and in any event holds PROGOLD harmless from any claims brought by third parties based on an alleged infringement of such rights occurring during the supply of the Products, undertaking to indemnify Progold against any such claims.

20. Language

20.1. These general terms and conditions of sale have been drafted in Italian; therefore, even where translations are published on www.progold.com, in the event of discrepancies the Italian version shall prevail as the authentic text.

21. Governing law and jurisdiction

21.1. These general terms and conditions of sale and the contracts entered into with Progold are governed by Italian law, excluding conflict-of-laws rules.

21.2. Any reference to commercial terms (such as EXW, etc.) is to be understood as a reference to the Incoterms of the International Chamber of Commerce of Paris, in the version in force at the date the contract is entered into.

21.3. For any dispute arising from or connected with these general terms or contracts entered into by PROGOLD, the courts of PROGOLD's registered office shall have exclusive jurisdiction.

21.4. However, notwithstanding the above, PROGOLD alone retains the right to bring the dispute before the courts of the place where the Customer is located, without prejudice to the exclusive applicability of Italian law.

22. Processing of personal data

22.1. Personal data is collected for the purpose of registering the Customer and enabling the procedures required to perform this contract and the related necessary communications.

22.2. Such data is processed electronically in compliance with applicable personal data protection and privacy laws, and may be disclosed only upon the express request of the judicial authority or of other authorities legally entitled to make such a request.

22.3. Personal data will be communicated to persons appointed to carry out the activities necessary to perform the contract entered into, and disclosed exclusively for that purpose. The security and confidentiality of the Customer's data is a priority for Progold; information relating to the individual, company/firm, orders and purchases made is strictly confidential, and Progold undertakes not to disclose or sell the information in its possession to external companies for promotional purposes.

22.4. The information provided will be used solely to send newsletters, communicate promotional news, notify of new product launches, and offer new products, unless the Customer expresses a contrary wish at the time of registration or subsequently via the unsubscribe link included in the communications received.

22.5. By approving these general terms and conditions of sale, the Customer declares to have been informed of all the elements required by Art. 13 of Regulation (EU) 2016/679, and consents to the processing of personal and business data as described in the Privacy Policy, including any disclosure to third parties whose cooperation may become necessary for the performance of the contract.

22.6. PROGOLD is authorised, where it deems appropriate, to reference the Customer's name, details and the characteristics of the products purchased within its own advertising material, press releases, publications, catalogues, magazines, newspaper articles, television programmes, webzines, newsletters, websites, etc.

23. Miscellaneous

23.1. Should one or more clauses of these general terms and conditions of sale be held null, voidable or invalid by the competent Judicial Authority, such nullity, voidability or invalidity shall in no way affect the other clauses of the agreement, and the clauses concerned shall be deemed modified to the extent and in the manner necessary for the competent Judicial Authority to consider them fully valid and effective, so as to achieve a purpose consistent with the intent for which the clause was drafted.

23.2. PROGOLD's failure to exercise any right arising from these general terms and conditions of sale or from the sale contract, or its tolerance of a breach by the Customer, shall in no way be construed as a waiver or implied amendment by PROGOLD of the provisions or remedies provided herein.