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GENERAL TERMS AND CONDITIONS OF PURCHASE
1) DEFINITIONS
“Buyer” means Bonfiglioli S.p.A. and any of its direct and indirect subsidiary companies and affiliates which issued a Purchase Order (Buyer is also hereinafter referred to as a “Party”).
“Parties” means collectively the Buyer and the Seller.
“Warranty Period” means, unless otherwise agreed in the Purchase Order or unless the law provides for a longer warranty period for the case in question, the warranty period which starts from the delivery date and expires 36 months from the delivery date. Insofar as installation or assembly and/or commissioning by the Seller has been agreed, the limitation period shall not commence before completion of the installation or assembly and/or commissioning. Insofar as acceptance is required, the warranty period shall commence on the acceptance date.
“Products” means Seller’s products identified in the relevant Purchase Order.
“Services” means Seller’s services identified in the relevant Purchase Order.
“Seller” means any entity which issued an offer to the Buyer (Seller is also hereinafter referred to as a “Party”).
2) SCOPE OF APPLICATION
a) These General Terms and Conditions of purchase (the “Terms and Conditions”) are the only terms which govern the purchase of Products and/or Services by Buyer from Seller based on Purchase Orders issued by the Buyer. Individual agreements made in writing which deviate from these Terms and Conditions take precedence over these Terms and Conditions. Any rights to which Buyer is entitled under statutory provisions beyond these Terms and Conditions shall remain unaffected.
b) These Terms and Conditions prevail over any of Seller's general terms and conditions of sale regardless whether or when Seller has submitted its offer or such terms. Any conflicting, additional or deviating terms and conditions of the Seller shall not become part of the contract, unless Buyer has expressly agreed to their validity in writing. These Terms and Conditions shall also apply if Buyer accepts a delivery and/or service of the Seller without reservation in the knowledge of the Seller's conflicting or deviating terms and conditions.
c) The contract consisting of the purchase order issued by the Byer “Purchase Order” and the respective unconditional acceptance issued by the Seller “Acceptance” and these Terms and Conditions (collectively, the “Agreement”) comprise the entire agreement between the Parties, and supersede all prior understandings, agreements, negotiations, and communications, both written and oral, if not expressly agreed otherwise between the Parties in writing. Any conditioned acceptance by the Seller constitutes a new offer which has to be accepted by the Byer in writing (Purchase Order).
d) Buyer’s acceptance and payment of Products and/or Services does not constitute acceptance of any of Seller’s terms and conditions and does not serve to modify or amend these Terms and Conditions.
3) PRODUCT DELIVERY AND/OR SERVICE PERFORMANCE
a) Seller shall deliver the Products and/or perform the Services to the agreed location and subject to delivery terms/performance terms specified in the Purchase Order.
b) Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Products and/or performance of the Services.
c) Seller acknowledges that title to Products shipped under any Purchase Order passes to Buyer upon delivery of the Products at the delivery location specified in the Purchase Order.
d) Seller acknowledges that risk of loss to Products shipped under any Purchase Order passes to Buyer in accordance with the Incoterms® 2020 specified in the Purchase Order.
e) Seller acknowledges that Buyer has the right to inspect the Products and/or the Services on or after the Products delivery date/Services performance date specified in the Purchase Order. The statutory provisions (§§ 377, 381 German Commercial Code (HGB)) shall apply to the commercial duty to inspect and give notice of defects with the following proviso: The Buyer's duty to inspect shall be limited to defects which become apparent during the incoming goods inspection under external examination including the delivery documents (e.g. transport damage, wrong delivery and short delivery) or which are recognizable during the quality inspection by the Buyer in the random sampling procedure. Apart from that, it depends on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later remains unaffected. If a defect becomes apparent during these inspections or later, the Buyer's notification shall in any case be deemed to have been made in good time and without delay if the Buyer notifies the Seller of the defect within 5 (five) working days of the inspection in the case of obvious defects and within 14 (fourteen) days of discovery in the case of hidden defects.
f) Buyer, at its sole option, may reject all or any portion of the Products and/or Services, if, after inspection as per article 3.e) above, the Products and/or Services are defective, in particular nonconforming with Purchase Order specifications. In such case, Seller shall, at its expense, promptly replace the nonconforming Products and/or Services and pay for all related expenses (including, but not limited to, transportation charges for the return of the nonconforming Products). Further claims of the buyer according to the statutory provisions remain unaffected.
4) PRODUCTS PRICES AND SERVICES FEES
a) Buyer shall purchase the Products and/or Services from Seller at the prices and/or fees set forth in the Purchase Order (respectively “Prices” and “Fees”).
b) Any additional costs, incurred by Seller in connection with the delivery of Products and/or performance of the Services, shall be borne by Seller, unless otherwise specified in the Purchase Order.
c) No increase in the Prices and/or Fees is effective, without the prior written consent of Buyer.
d) Payment terms and invoicing plan of the amounts effectively due (and not protested) as Prices of the Products and/or Services Fees, are set forth in the relevant Purchase Order.
5) TESTING AND INSPECTION
a) All testing and inspections must be carried out by the Seller in accordance with the technical specifications, the applicable laws and regulations, and any other requirements specified in the relevant Purchase Order.
b) The Buyer is entitled to carry out inspections at the Seller’s premises and/or at the premises of any Seller’s sub-contractor or sub-supplier, giving a reasonable advance notice to the Seller, in order to verify (i) the progress of the current Purchase Order and (ii) the Seller’s compliance with contractual obligations arising out from the Agreement.
6) PRODUCT/SERVICE WARRANTY
a) For Products: Seller warrants (gewährleistet) to Buyer that each Product will (i) be free from any defects in workmanship, material and design, (ii) conform to the applicable laws and regulations, the specifications, drawings, designs, samples and other requirements specified in the applicable Purchase Order, (iii) be fit for its intended purpose and operate as intended, (iv) be merchantable.
b) During the Warranty Period, with respect to any defective Product, if Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Products (at Buyer’s discretion) and pay for all related expenses (including, but not limited to, transportation charges for the return of the defective or nonconforming Products to Seller and the delivery of repaired or replacement Products to Buyer). If Seller culpably fails to timely deliver replacement of Products or repair the same within a reasonable time set by Buyer, Buyer may have said Products replaced or repaired from a third party, charging Seller with the cost thereof.
c) For Services: Seller warrants (gewährleistet) to Buyer that each Service will (i) be free from any defects in design, (ii) conform to the specifications and requirements as indicated in relevant Purchase Order, (iii) be fit for its intended purpose and operate as intended in relevant Purchase Order.
d) During the Warranty Period, with respect to any defective Services, if Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly reinstate the correct performance of the defective Services or rectify the defective Services and pay for all related costs and expenses. In said case, Seller shall also reimburse administrative and management costs necessaries to reinstate/ rectify the Services performance according to what set forth in the relevant Purchase Order. If Seller fails to timely reinstate/ rectify the correct performance of the Services within a reasonable time set by Buyer, Buyer may have said Services performed or rectified from a third party, charging Seller with cost thereof.
e) Any other statutory rights of the Buyer in case of defective Products and/ or Services and for malperformance remain unaffected.
7) INTELLECTUAL PROPERTY
a) Each Party acknowledges and agrees that: (i) any and all Intellectual Property Rights owned by or licensed to the other Party are the sole and exclusive property of that Party or its licensors; (ii) it shall not acquire any ownership interest in any of the other Party’s or its licensors Intellectual Property Rights under the Agreement.
b) To the extent that any Seller’s Intellectual Property Rights are incorporated into any Products and/or Services, Seller grants Buyer a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, non-sublicensable license and right to use such Seller’s Intellectual Property Rights to the extent necessary for Buyer to (i) own, exploit, use and transfer the Products, sell the Products to its final clients; (ii) use the Services.
c) For the purpose of these Terms and Conditions “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names; (iv) designs; (v) software and firmware; and (vi) trade secrets, business and technical information and know-how.
8) INTELLECTUAL PROPERTY INDEMNIFICATION
a) Seller warrants to Buyer that purchase, ownership, possession, use and/or sale of Products and/or Services will not involve any infringement or misappropriation of Intellectual Property Right of any third party.
b) Seller shall, at its expense, defend, indemnify and hold harmless Buyer against any and all loss, damage, liability, claim, deficiency, action, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder arising out of or in connection with any justified claim that Buyer’s use or possession of the Products infringes or misappropriates the patent, copyright, trade secret or other Intellectual Property Right of any third party if this is due to a culpable breach of the Seller. The Buyer's obligation to set the Seller a deadline for subsequent performance in accordance with the statutory provisions remains unaffected hereby, if applicable.
9) CONFIDENTIALITY
a) Each Party (as the “Disclosing Party”) may disclose to the other Party (as the “Receiving Party”) information about its business affairs, products and services, forecasts, confidential information and materials comprising or relating to Intellectual Property Rights, and other sensitive or proprietary information. Such information, as well as the terms of the Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, is collectively referred to as “Confidential Information” hereunder.
b) The Receiving Party shall (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information; (ii) not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights or perform its obligations under the Agreement; (iii) not disclose any such Confidential Information to any third party, without prejudice to Buyer’s right to transfer or disclose with its own final clients the Confidential Information of the Seller, for the exclusive purpose of making final clients able to use and/or resell Products and/or Services. The foregoing provision shall not apply to information that is already in the public domain or that is required to be disclosed by a legally binding official or court order.
10) BUYER’S EQUIPMENT
a) All tools such as workshop equipment, photos, templates, moulds, equipment, etc., owned by the Buyer (or under Buyer’s possession at any title), together with construction drawings, designs and documentation in general (the “Buyer’s Equipment”) are and shall remain the sole property of the Buyer.
b) Buyer’s Equipment must be returned to the Buyer without objection whenever requested by the same. In any event, the Seller undertakes to (i) use the Buyer’s Equipment for the sole purpose of performing its obligations under the Agreement and (ii) mark such Buyer’s Equipment clearly and in a way that is visible to everyone as the sole property of the Buyer, for as long as such Buyer’s Equipment remain in Seller’s possession. The extraordinary and ordinary maintenance and use of said Buyer’s Equipment is under Seller’s liability. The Seller is also responsible for the correct use of said Buyer’s Equipment, so as not to cause injury to persons or damage to property. In the event of damage or loss, the Seller must pay the Buyer the full amount of the residual value of the lost or damaged Buyer’s Equipment according to the statutory provisions.
11) SUPPLY FOR MANUFACTURING PURPOSES
a) Should the Seller, in accordance with the Purchase Order, perform manufacturing activities on raw materials and/or semi-manufactured goods delivered by the Buyer or by third parties authorised by the latter (“Semi-Finished Materials”), the provisions of these Terms and Conditions shall apply.
b) Upon receipt of the Semi-Finished Materials and before the carrying out of such manufacturing activities, the Seller undertakes to verify that the Semi-Finished Materials are compliant with technical specifications and do not present any defects.
12) TERMINATION EVENTS/ WITHDRAWAL
a) Without prejudice to Buyer’s right to claim for further damages, Buyer may at any time terminate the Agreement effective immediately for good cause or withdraw from the Agreement respectively, if: (i)Seller becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law; (ii) a substantive change in control of Seller occurs which bears a reasonable risk of affecting the Buyer’s interests; (iii) a Force Majeure Event in the meaning of clause 13 continues to exist for at least 30 working days.
b) The right to withdraw from the Agreement or to terminate it respectively and/or to claim damages according to the statutory provisions remains unaffected hereby.
13) FORCE MAJEURE
a) No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, when and to the extent such failure or delay is caused by or results from a force majeure event; force majeure events shall be all unusual, unforeseeable events that are independent of the will and influence of the parties (“Force Majeure Events”), in particular: (i) acts of God; (ii) flood, fire, earthquake or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) action by any governmental authority; (v) national or regional emergency, even in case of epidemics, pandemics, outbreaks. The impacted Party shall give notice promptly to the other Party, stating the date of occurrence of relevant Force Majeure Event and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. For the sake of clarity, Seller’s sub-suppliers and/or sub-contractors defaults shall not be considered as Force Majeure Events.
14) RECALL CAMPAIGN
a) In the event the Buyer conducts a recall campaign of its final products (hereinafter the “Final Products"), due to Products and/or Services defective and not compliant with Agreement’s requirements and specifications, the Seller upon Buyer’s request: (i) shall promptly provide the Buyer, directly and at its own expense, with the necessary Products and/or Services for repairing or replacing the Final Products, and (ii) shall promptly reimburse the Buyer the necessary costs of any disassembly, assembly, repair and replacement of the Final Products, unless otherwise agreed in writing by the Parties' legal representatives.
b) The statutory rights of the purchaser in respect of defects shall remain unaffected by this provision.
15) INSURANCE
a) Seller shall, at its own expense, maintain and carry in full force and effect appropriate civil and commercial general liability (including product liability) insurance policies with financially sound and reputable insurers.
b) Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance evidencing the insurance coverage specified in this Section and with documents certifying payment of the relevant insurance premium.
16) APPLICABLE LAW AND JURISDICTION
a) The Agreement shall be exclusively governed by and construed in accordance with German Law to the exclusion of the reference standards of private international law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
b) The Courts at the Buyer's registered office in Germany shall have exclusive jurisdiction for any dispute or claim arising from the Agreement if the Seller is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law. However, the Buyer is also entitled to sue the supplier at its general place of jurisdiction or at any other permissible place of jurisdiction. This place of jurisdiction shall also apply if the Seller has no general place of jurisdiction in Germany.
17) MISCELLANEOUS
a) Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement.
b) Seller shall perform its obligations under the Agreement in compliance with all applicable laws and regulations (including but not limited to, REACH regulation EC 1907/2006 and ROHS directive 2011/65/EU and subsequent amendments) and with “Bonfiglioli Group Code of Ethics” available at www.bonfiglioli.com. The Seller undertakes to provide the Buyer on request with all the documents and certificates required to demonstrate Seller’s compliance to the above said regulations and to Bonfiglioli Group Code of Ethics.
c) Seller and Buyer are independent contracting parties. Nothing in the Agreement creates any agency, joint venture, partnership or other form of joint enterprise relationship between the Parties. Neither Party has any right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
d) If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of the Agreement. The Parties are obliged to replace the invalid or unenforceable provision with a valid provision that comes as close as possible to the economic purpose pursued by the Parties with the invalid provision. The same shall apply in the event of a gap in the Agreement.
e) No amendment or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each Party. The same applies for the waiver of this written form clause.
f) No waiver by each Party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by such Party.
g) Seller may not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Buyer.
