GENERAL TERMS AND CONDITIONS OF SALE
1) DEFINITIONS.
“Buyer” means any entity which issues a Purchase Order to the Seller (Buyer is also hereinafter referred to as a “Party”). “Parties” means collectively the Seller and the Buyer.
“Products” means Seller’s products identified in the relevant Purchase Order accepted by Seller.
“Purchase Order” means the purchase order sent by the Buyer to the Seller.
“Seller” means Bonfiglioli S.p.A. and any of its direct and indirect subsidiary companies and affiliates which accept a Purchase Order (Seller is also hereinafter referred to as a “Party”).
2) SCOPE OF APPLICATION.
a) Unless the Parties have entered into a specific and independent contract for the supply of certain Products, these general terms and conditions of sale (the “Terms and Conditions”) are the only terms which govern the sale of Products by Seller to Buyer based on Purchase Orders issued by the Buyer.
b) The Purchase Order sent by Buyer to Seller constitutes a binding proposal by the Buyer to purchase Products in accordance with these Terms and Conditions.
c) The Purchase Order shall only be deemed to be accepted when Seller issues the written acceptance of the Purchase Order, in absence of which Purchase Order shall be deemed accepted upon delivery of the Products to Buyer by Seller (the “Accepted Purchase Order”).
d) These Terms and Conditions prevail over any general terms and conditions of purchase of the Buyer regardless of whether or when the general terms and conditions of purchase of the Buyer were sent to the Seller.
e) The Accepted Purchase Order 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.
3) SHIPMENT, DELIVERY, TITLE AND RISK OF LOSS.
a) Subject to Buyer’s compliance of Section 4 and Section 5 of these Terms and Conditions, Seller shall deliver the Products to the delivery location in accordance with the Incoterms clause agreed in writing between the Parties in the applicable Accepted Purchase Order. If any modifications to the Products to be delivered are agreed between the Parties after the Purchase Order has been accepted by the Seller, the delivery date shall be extended accordingly.
b) Buyer acknowledges and accepts that ownership of the Products is transferred to the Buyer only when Buyer pays the Price in full.
c) Buyer acknowledges and accepts that the risk of loss and damage to the Products is transferred to Buyer in accordance with the delivery term agreed by the Parties.
4) PRICE AND PAYMENT.
a) Buyer shall purchase the Products from Seller at the price set forth in the Accepted Purchase Order (“Price”).
b) Any additional costs incurred by Seller in connection with the delivery, which are not covered by the agreed Incoterms clause, including, but not limited to, inspection costs, consulate or certification fees, shall be borne by Buyer.
c) The Price does not include any sales and/or use taxes, and any other similar taxes, duties and charges of any kind.
d) In the event that the Parties, after Seller's acceptance of the Purchase Order, agree to make changes to the Products to be delivered, Seller reserves the right to unilaterally modify the Price accordingly.
e) In the event that, during the execution of the Agreement, there are increases in production costs (including, but not limited to, the Release 2025 cost of raw material and/or energy costs), resulting from circumstances beyond Seller’s control, Seller shall have the right to increase the Price of the Products in proportion to the increase suffered and with immediate effect, subject to prior written notice to the Buyer. Consequently, the Buyer shall compensate the Seller for any price increase (including mark-ups) relating to any supplies, materials, services, or costs associated with this contract between the date of the Purchase Order and the date on which the Seller receives definitive confirmation of the application of the imposed tariff measures. The Seller undertakes to send the updated Accepted Purchase Order regarding the prices of the Products in a timely manner. The Buyer shall not be liable for any compensation if the Seller does not notify it of the price change before sending the products; as a result, the Buyer undertakes to pay the Price established in the Accepted Purchase Order in its latest duly notified revision.
f) Buyer shall pay to Seller all invoiced amounts according to the payment terms set forth in the Accepted Purchase Order.
g) Payments shall be considered correctly made only when Seller can freely dispose of the relevant amounts. If Buyer does not make payments correctly within the agreed terms, the default interest rates established by Legislative Decree 231/2002 and subsequent amendments shall apply. Any costs incurred by Seller for the recovery of its credit will be the sole responsibility of Buyer.
h) According to art. 1246 n. 4 of the Italian Civil Code, Buyer expressly waives its right to offset, counterclaim, deduct or withhold any amount due from the Seller to Buyer with any sums due by Buyer to Seller.
5) OTHER BUYER’S OBLIGATIONS.
a) With respect to the Products, Buyer agrees: (i) to cooperate with Seller with respect to all matters relating to the Products and to permit Seller, based on requests reasonably made by Seller access to Buyer’s premises, plants and/or any other facilities, for the purpose of the proper and timely performance of the Agreement, (ii) to promptly respond if Seller requests directions, information, authorizations and/or permits that are reasonably necessary for Seller in order to properly and timely execute the Agreement, (iii) to promptly provide Selle with such information and/or material owned by Buyer (including, without limitation, free test materials free and technical specifications required for development of the Products) as are reasonably requested by Seller in order to properly and timely execute the Agreement and to ensure that such information and/or materials are provided in a manner that is complete and accurate in all respects, (iv) to take out and maintain effective, at its own expense, appropriate liability insurance policy (including liability arising out of the Products) with insurance companies of primary standing, and to deliver to Selle upon the latter’s simple request, the certificate of insurance specifying the details relating to the insurance coverage, as well as proper documentation proving the regular payment of the relevant insurance premiums, and (v) to obtain and maintain effective all licenses, authorizations and acts of consent necessary to fulfill its obligations under the Agreement.
6) PRODUCT WARRANTY.
a) Seller warrants to Buyer that, for the entire duration of the Warranty Period as specified below, the Products will be free from material defects in design and workmanship (“Product Warranty”).
b) Unless otherwise agreed in writing between the Parties, the Seller's warranty obligation shall have a duration of 12 (twelve) months, starting from the delivery of the Products, according to art. 1495 of the Italian Civil Code.
c) The Product Warranty shall not apply if the Products: (i) have been subjected to misuse, neglect, accident(s), improper testing and/or installation and/or storage and/or handling, abnormal environmental conditions and/or physical stresses, and in any event have been used contrary to the instructions provided by Seller, or (ii) have been subjected to repairs, modifications or replacements made by parties other than Seller or its authorized representatives, or (iii) have been used in conjunction with any third party products not previously approved in writing by Seller.
d) During the Warranty Period, with respect to Products that Buyer believes to be defective: (i) Buyer shall notify Seller of the alleged defect in a timely manner and in writing, (ii) Buyer shall deliver to Seller the allegedly defective Products, bearing the related transportation and shipping costs, within a reasonable period of time after notice of the defect, (iii) subject to limitations to the Product Warranty set forth in this Section 6, in the event that, as a result of the relevant verifications carried out by Seller, the latter deems in its sole discretion that the Products are indeed defective, Seller undertakes to replace or repair the defective Products (at Seller's option), bearing the related costs. Conversely, in the event that the verifications made by Seller exclude the existence of a defect and/or defect covered by the warranty set forth in this Section 6, all costs, if any, incurred by Seller shall be charged to Buyer.
e) Except for the Product Warranty set forth in this Section 6, Seller does not make, nor has Seller made, expressly or impliedly, orally or in writing, any representation of warranty, including any warranty of merchantability, fitness for a particular purpose, or non-infringement of Intellectual Property Rights of third parties.
f) To the extent permitted by applicable law, the provisions of this Section 6 shall, in any event, constitute Buyer's sole and exclusive remedy in the event that the Products are found to be defective, provided that Buyer fulfils its obligation to notify Seller of the alleged defect promptly and in writing.
7) TERMINATION CLAUSE.
a) Without prejudice to the right to compensation for any further damages, at any time Seller shall have the right to terminate the Agreement with immediate effect, pursuant to art. 1456 of the Italian Civil Code, if: (i) Buyer fails to make payments within the agreed terms, (ii) Buyer is subject to bankruptcy, composition, insolvency or debt restructurings, (iii) there is any change in Buyer’s ownership structure, (iv) a Force Majeure Event occurs that prevents Buyer from fulfilling its obligations under the contract for a period exceeding 30 (thirty) days.
b) Seller shall in no way be liable to Buyer for any damages suffered by Buyer as a result of the termination of the Agreement.
c) Termination of the Agreement shall in no way constitute a waiver by Seller of its rights and remedies under the Agreement, or applicable law.
8) LIMITATION OF LIABILITY.
a) In relation to indirect or consequential damages (such as, but not limited to, losses resulting from delays in the business and/or inactivity, loss of chances, injury to its image and/or business reputation) the liability of each Party is fully excluded.
b) In relation to direct damages, the aggregate liability of each Party shall in no event exceed an amount equal to the value of the Accepted Purchase Order from which said damages resulted.
c) The limitations set forth in this Section 8 shall not apply with respect to cases of willful misconduct, gross negligence, death and personal injury.
9) INTELLECTUAL PROPERTY.
a) Buyer acknowledges and agrees that: (i) any and all Intellectual Property Rights owned by (or licensed to) Seller are and will remain the exclusive property of Seller (or its licensors), (ii) Buyer will not acquire, through the Agreement, any rights in Seller’s (or its licensors’) Intellectual Property Rights.
b) For the purpose of these Terms and Conditions “Intellectual Property Rights” means any industrial and intellectual property rights relating to: (i) patents for inventions and/or designs, (ii) trademarks, (iii) internet domain names, (iv) designs, (v) software and firmware, and (vi) trade secrets, technical or commercial information, know-how.
c) All inventions and know-how, even if not patentable, as well as patents and/or designs and, in general, any other industrial property right, as well as any industrial and intellectual property right relating to the Products and resulting from the activities covered by this Contract, shall be the exclusive property of Seller.
10) CONFIDENTIALITY.
a) Each Party (“Disclosing Party”) may disclose to the other Party (“Receiving Party”) certain information of a technical and/or commercial nature relating to products, services, market forecasts, or confidential materials and/or information comprising or relating to Intellectual Property Rights. Such information, as well as the content of the Agreement, whether communicated orally or in written, through electronic media or through other forms of communication, regardless of whether it is identified as “secret” or “confidential”, is collectively referred to as “Confidential Information”. Notwithstanding the foregoing, the term “Confidential Information” does not include information that (i) is in the public domain or has come into the public domain through actions not attributable, directly or indirectly, to the Receiving Party, (ii) was already lawfully in possession of the Receiving Party or (iii) is required to be disclosed by virtue of a court order.
b) For a period of 3 (three) years from the date of the disclosure of the Confidential Information, the Receiving Party agrees to: (i) keep the Disclosing Party's Confidential Information strictly confidential, (ii) use the Disclosing Party’s Confidential Information solely to exercise its rights and/or perform its obligations under the Agreement, (iii) not disclose in any way the Disclosing Party's Confidential Information, in whole or in part, to any third party, except by virtue of prior written authorization from the Disclosing Party and provided that the third party is bound by a confidentiality agreement of similar content to this one.
11) FORCE MAJEURE.
a) Neither Party shall be liable to the other Party as a result of any failure or delay in the performance of any of its obligations under the Agreement (other than the obligation to make payments to the other Party) where such failure or delay in performance is caused by events beyond the reasonable control of such Party, including but not limited to: (i) acts of God, (ii) flood, fire, earthquakes, or explosions, (iii) war (whether or not declared), insurrections, aggressions, terrorist threats or acts, street disturbances, (iv) measures or activities put in place by any administrative authority, (v) national or regional emergency, including due to epidemics or pandemics (vi) strikes, lockouts or labor disturbances of any kind, (vii) shortages of sufficient electric power and/or adequate transportation systems (“Force Majeure Events”).
b) The Party affected by a Force Majeure Event agrees to give immediate written notice to the other Party and to take use all reasonable efforts to remedy the default or delay and minimize the effect of the Force Majeure Event on its ability to perform the Agreement.
12) BUYER’S ACTS OR OMISSIONS.
a) In the event Seller fails to perform, or is late in performing, its obligations under the Agreement because of any act and/or omission performed by Buyer, Seller shall not be held in default of its obligations under the Agreement nor shall Seller be liable for any damage, loss, expense or cost incurred by Buyer as a direct or indirect result of such failure or delay.
13) ORGANIZATION AND MANAGEMENT MODEL UNDER LEGISLATIVE DECREE NO. 231/2001, CODE OF ETHICS AND WHISTLEBLOWING CHANNEL
a) Buyer declares that it is aware of the regulations set forth in Legislative Decree No. 231/2001 regarding the administrative liability of entities, as well as having read and accepted, to the extent of its competence within the scope of the activities envisaged in the contractual relationship, the principles contained in the Code of Ethics adopted by the Seller and published on its institutional website at the following link https://www.bonfiglioli.com, which is an integral part of the Organization and Management Model adopted by the Company for the purposes of Legislative Decree No. 231/2001 (hereinafter also “Model 231”).
b) Buyer, within the scope of the contractual relationship with Seller, undertakes not to engage in, including through its employees, collaborators, consultants, as well as its own shareholders and directors:
- acts or conducts in conflict with the provisions of Legislative Decree no. 231/2001, or which could determine or facilitate the commission of offences contemplated by the aforementioned Decree, regardless of their actual consummation or punishability;
- acts or conduct in conflict with the prescriptions set forth in the Code of Ethics adopted by Bonfiglioli, which is an integral part of the 231 Model adopted by the Company.
c) In the event of non-performance, even partial, of the obligations set forth above, Seller shall have the right to withdraw from this Agreement and, in the most serious cases, to terminate it by right and with immediate effect pursuant to art. 1456 of the Italian Civil Code, without prejudice, even independently of the termination of the contractual relationship, to Buyer's obligation to indemnify any damage and prejudice resulting from the non-performance, including the obligation to indemnify and hold harmless Seller from any third party action, expenses, fines and/or penalties arising from or resulting from such non-performance.
d) Buyer is informed that Seller has activated a specific communication channel to report any violations of Legislative Decree No. 231/2001, the 231 Model, the Code of Ethics or EU and national regulations of which it becomes aware. Such reports may be made using the computer portal “Integrity Line” available at the link: https://bonfiglioli.integrityline.com.
14) ANTI- CORRUPTION
a) Seller has adopted an Anti-Corruption Policy, which can be found on the institutional website at the following link: https://www.bonfiglioli.com/italy/it/sostenibilita/governance.
b) Buyer declares that he/she has read, understood and shared the principles contained therein, undertaking to comply with them and, therefore, undertaking not to receive from and not to offer, promise or give, directly or indirectly, money or other benefits, to employees, collaborators, representatives, directors, managers of Seller, or to persons subject to the direction or supervision of the latter, in violation of the obligations inherent in their office or obligations of loyalty, in order to obtain in exchange an undue advantage in the performance of the contractual relationship. In the event of Buyer's breach of the aforementioned obligations and representations, Seller shall have the right to unilaterally terminate the contract, effective immediately, pursuant to and in accordance with Article 1456 of the Civil Code.
15) APPLICABLE LAW AND JURISDICTION.
a) The Agreement shall be exclusively governed by and construed in accordance with Italian Law (however expressly excluding in full the United Nations’ Convention on the International Sales of Goods “CISG”).
b) Any and all disputes, including those that may arise in relation to the validity, effectiveness, interpretation, execution, enforcement and termination of the Contract, shall be submitted exclusively to the jurisdiction of the Court of Bologna.
16) MISCELLANEOUS.
a) Seller and Buyer are independent parties. The Agreement does not involve any agency, collaboration, partnership, joint venture, or representative relationship between the Parties. Neither Party shall have the right, authority, or power to act for and/or on behalf of the other Party, nor to bind the other Party or create any obligations against the other Party to third parties.
b) The ineffectiveness, nullity, or unenforceability of any of the provisions of the Agreement shall in no event result in the ineffectiveness, nullity, or unenforceability of the entire Agreement, the remaining provisions remaining in full force and effect.
c) Any amendment to the Agreement shall be valid only if made in writing and signed by authorized representatives of both Parties.
d) Any waiver by either Party of its rights under the Agreement shall be valid only if made in writing and signed by such Party.
e) Buyer shall not under any circumstances assign the Agreement, even in part, without the prior written consent of Seller.
f) Buyer acknowledges its responsibility to ensure that any subsequent resale or handling of the Products is carried out in accordance with European and international law regarding subjective/objective restrictions, embargoes and dual-use. The provision of incomplete or untrue information will constitute a breach of the Contract and will justify suspension or termination of the Agreement by Seller without notice. Seller's refusal to make delivery will not constitute a breach and Seller will not be liable for failure to perform or breach the Agreement.
