2. SHIPPING AND DELIVERY
By accepting this agreement, the Supplier, in turn, agrees without any reservations to fulfill the delivery and supply of goods/services in accordance with all the conditions and terms specified in the agreement, considering the delivery method as an essential condition of the agreement. The delivery term stated in the agreement shall be considered as a crucial deadline. The goods must be shipped DDP (Incoterms 2010) to the Buyer or to another destination specified by the Buyer, in compliance with the instructions provided in the purchase order. The Buyer reserves the right to reschedule and modify the delivery methods, providing written notice to the Supplier with reasonable advance notice.
3. PRICES AND PAYMENT TERMS
All prices (excluding VAT) must be considered fixed and non-negotiable for the entire duration of the agreement. The Buyer's payment terms entail settling invoices issued by the Supplier, net of any credit notes, within a period of ninety days from the end of the month following the delivery date. In case the delivery is carried out using different methods specified in the agreement, the payment terms of ninety days from the end of the month will commence from the later date between the one identified as the "delivery request" date and the "actual delivery" date. The Buyer has the authority to offset any amounts owed to the Supplier with equivalent amounts owed by the Supplier to the Buyer, even concerning different and additional business relationships. The Supplier is obliged to: (Additional information is needed to complete the translation. Please provide the specific obligations of the Supplier in the text for a more accurate translation.)
- attach a transport document (DDT) to the Goods and send the corresponding product certification (where required) on the same day as the Goods are dispatched;
- clearly state the order number, order lines, and codes from the Buyer's purchase order on the invoice, as well as the DDT number and all the information required for tax purposes;
The Supplier ensures that the Goods/Services:
– comply with the quality standards required by the Purchaser and will not present defects of any kind such as to render the Goods/Services unsuitable for use or appreciably reduce their value and which are due to the design, materials used, work carried out and, this, for a time period of twelve months starting from the delivery date;
– comply with the relevant technical specifications and descriptions as indicated in the Agreement;
– returns under warranty, at the Buyer's discretion, may be either repaired, or replaced or re-credited by issuing a credit note to the Buyer;
– comply with and comply with all the requirements established by law, statutes, orders, rules and regulations in force at the time of delivery.
The Supplier, subject to reasonable notice by the Purchaser, must grant the Purchaser or third parties appointed by it, access to its facilities and allow the Purchaser to inspect and/or test the Goods during and after the production phase. In any case, these inspections do not relieve the Supplier in any way from its contractual obligations and responsibilities, as indicated in paragraph 4.
The Supplier fully indemnifies the Buyer, without any reservations, against any actions, liabilities, costs, or expenses that may arise as a result of the violation of any point mentioned in paragraphs 4 or 8 or both of these Conditions.
The Purchaser will have the right not to accept and reject delivery of all or part of the goods/services in the event that the Goods/Services will not be supplied in full compliance and in compliance with all the Terms of the Agreement (including, by way of example but not limited to, compliance with the terms and conditions relating to quantity, quality and delivery date). The Goods/Services not accepted by the Purchaser, at the Purchaser's discretion, may be withheld or returned by the Purchaser, in both cases the costs, risks and contractual obligations will in any case be charged and the responsibility of the Supplier. The Purchaser must notify the Supplier of its intention not to accept the Goods/Services in writing within thirty days from the delivery date or, in the event that the defect occurs subsequently - at a time following delivery -, within thirty days from the date on which the Purchaser actually becomes aware of it. In the event that the Goods/Services are not accepted by the Purchaser, the latter, in addition to reserving the right to request compensation for any damages suffered, will not be required to pay the Goods/Services to the Supplier or, if the Goods/Services Services have already been paid for, you will have the right to an immediate refund of the entire amount paid for the aforementioned Goods/Services. Failure to accept the Goods/Services by the Purchaser will in any case not give the Supplier the right to proceed with their replacement. Only the Purchaser may authorize the Supplier to replace the Goods/Services by written communication
8. INTELLECTUAL PROPERTY
Without prejudice to the signing of derogatory agreements, the Supplier unconditionally assigns and acknowledges to the Purchaser all design rights relating to any project carried out on a specific order or indication from the Purchaser. Furthermore, the Supplier grants and unconditionally acknowledges to the Purchaser the right to request, where possible, the registration of each project. The Supplier ensures that the Goods/Services do not violate and conflict with any letter, patent, trademark, factory model, project or copyright. In the event that the use or possession of the Goods/Services by the Purchaser is alleged to infringe the intellectual property rights of any third parties, the Supplier, at its own expense, shall:
– modify or replace the Goods/Services without affecting their overall performance in order to avoid infringement; that is
– procure for the Purchaser the right to continue to use the Goods/Services. If the Supplier commits a violation referred to in point 8, he will be responsible and will bear all costs and expenses resulting from any legal action that may be brought against the Purchaser. The Supplier will also take charge of any damage attributable to the violation itself that is suffered by third parties with whom the Purchaser acts as an intermediary.
9. LOSS AND DAMAGE INSURANCE
The Supplier guarantees that it has insurance coverage that is suitable and appropriate to the nature of the contractual relationship in place with the Purchaser and undertakes to compensate the Purchaser and its personnel for any type of contractual and non-contractual damage (loss, damage, accident, claim, costs and expenses, etc.) which may derive directly or indirectly from any violation and/or breach of the Agreement entered into by the Supplier, or by the personnel and agents of the Supplier. The Supplier, upon simple request by the Purchaser, undertakes to provide appropriate details and copies of its insurance coverage.
The Agreement is confidential in nature and may never be disclosed by the Supplier, not even partially and not even through its subordinates or collaborators, to third parties. The Agreement may never be used by the Supplier or any of its subordinates or collaborators for advertising, demonstration or publication purposes without the Buyer's prior written consent.
11. OWNERSHIP AND RISK
Title to the goods/services shall pass to the Purchaser upon the occurrence of the first of two events: delivery to the Purchaser (or any other specified destination) or payment of the Goods/Services. The Purchaser will assume responsibility for the risks only from the time of delivery. The material supplied free of charge by the Purchaser to the Supplier will remain the property of the Purchaser at all times and the Supplier will act as its custodian with the consequent obligations and responsibilities. Subcontracting exclusion: The Supplier may not subcontract any of its contractual obligations to third parties without the prior written consent of the Purchaser.
The Supplier cannot unilaterally terminate the contract. The termination of the contract by the Supplier may only take place with the prior written authorization of the Purchaser, who may, at his discretion, request the payment of a reasonable sum as a penalty. The Purchaser, for justified reasons, reserves the right to request the termination of the Agreement at any time prior to the delivery of the Goods/Services. Termination may be subject to payment by the Purchaser of a reasonable sum in compensation for the activity performed by the Supplier.
13. PAYMENT IN ADVANCE
In the event that the Purchase Order requires the Purchaser to make an advance payment to the Supplier with respect to the delivery date of the Goods/Services, the Supplier will use the amount advanced by the Purchaser exclusively for the purchase of raw materials and equipment necessary for the production of the Goods/Services covered by the Agreement. The Purchaser will have the right to carry out the appropriate checks in this regard also by requesting the production of documentation by the Supplier. Such raw materials and/or equipment will become the exclusive property of the Purchaser immediately from the moment in which the Supplier proceeds with the order to the third parties responsible for the supply. The Supplier shall ensure and guarantee that the ownership transfers from the third parties to the Purchaser directly and concurrently. Such raw materials and/or equipment must be stored by the Supplier, stored separately and labeled in order to identify them as the property of the Purchaser. The Supplier shall conserve and keep such goods with the utmost diligence and will bear responsibility for any loss, direct or indirect, which is a consequence of damage to the raw materials and/or equipment in its possession. In the event the Agreement between the parties is terminated, the Supplier shall return to the Purchaser immediately, and without any deduction or compensation of any kind, the remaining balance of the amount advanced to it for the purchase of raw materials and/or equipment for the production of goods. The Provider acknowledges that the terms of these Terms are appropriate and reasonable.
In the event that any provision of the Agreement is deemed wholly or partly unenforceable or in conflict with the law or competent jurisdiction, such provision will become unenforceable but, however, will not be able to invalidate the entire Agreement in any way, which, conversely, it will remain in place for all further rulings. The Purchaser's rights cannot be considered jeopardized or limited by any tolerance shown by the Purchaser towards the Supplier. In the event of any contractual violation by the Supplier, no waiver by the Purchaser may be considered, with reference to any subsequent violation by the Supplier, as a definitive waiver of its rights and protections.
15. COMPETENT JURISDICTION
The exclusive jurisdiction for any dispute relating to sales and related contracts concluded by the Purchaser is that of Milan (Italy). Alternatively, the choice of being able to appeal to the National and International Arbitration Chamber of the Milan Chamber of Commerce (Italy) will be at the sole discretion of the Purchaser. The language of the arbitration will be Italian for disputes with national Suppliers and English for those with international Suppliers. Alternatively, the choice of being able to appeal to the competent court, as well as to the legislation of the country of the Supplier, will be at the sole discretion of the Purchaser, in order to be able to recover any credits due against the same.
16. APPLICABLE LAW
Italian law is applicable to the acquisition of goods and the provision of services carried out by the Purchaser.
This contract is stipulated in Italian and English, in the event of interpretative discrepancies between the two versions, the stipulation in Italian prevails.
Carpiano, January 2008
OFFICINE ORSI S.p.A.
Villaggio Francolino – 20080 CARPIANO (MI) ITALIA
Tel 02 9850951 Fax 02 9815452
C.F./P.Iva IT 02821570153