General conditions of purchase
1. General provisions
1.1 Applicability of these general conditions. These general conditions of purchase (the “General Conditions”) govern each and every request for an offer, purchase order and contract concerning the purchase of products (the "Products"), the manufacture, processing and/or supply of which is in any way commissioned by Berardi Bullonerie S.r.l. (the “Purchaser”) from each of its suppliers (the “Supplier;" the Purchaser and the Supplier are referred to collectively hereinafter as the "Parties"). The Supplier’s acceptance of the Purchaser’s purchase orders pursuant to article 2.1 below, shall also entail the Supplier's full acceptance of these General Conditions.
1.2 Amendments to the General Conditions and to the contract. Any addition, amendment and/or exception to these General Conditions, and/or to the contract entered into on the basis of said General Conditions, shall be valid only if required in writing by the Purchaser or expressly accepted by the Purchaser in writing. The Purchaser reserves the right to amend these General Conditions upon 15 (fifteen) days' prior written notice, without prejudice to the Supplier's right to inform the Purchaser in writing, within the same 15-day period following receipt of the new general conditions of purchase, of the Supplier's unwillingness to accept said general conditions. In the absence of written notice of objection to the new general conditions of purchase, sent by the Supplier to the Purchaser before the end of said 15-day period, said new general conditions shall be deemed to have been tacitly accepted by the Supplier.
Any general conditions of sale of the Supplier, wherever set forth, shall be inapplicable in their entirety unless previously approved in writing by the Purchaser.
1.3 Governing language and text. These General Conditions are drafted in the Italian and English languages. In the event of doubts as to the interpretation hereof, the Italian language version shall prevail.
2. Purchase orders - Contract conclusion
2.1 Acceptance of purchase orders; formation of purchase contracts. The Supplier shall manufacture and/or supply the Products to the Purchaser in compliance with the purchase orders (the “Order/s”) sent by the Purchaser in writing from time to time and accepted by the Supplier, and in compliance with the technical specifications, drawings and every other document constituting part of and/or following from the Order or in any case, delivered or expressly approved by the Purchaser pursuant to these General Conditions.
The Supplier shall indicate its acceptance of each Order by sending the Purchaser a copy of the Order duly signed and stamped for acceptance or, alternatively, by sending the Purchaser an order confirmation. Any different communication from the Supplier which does not conform to the Order shall constitute a counteroffer, the acceptance of which is left to the Purchaser's full discretion. In any case, the Purchaser's Order shall be deemed to have been accepted by the Supplier, and the relating contract shall be deemed to have been concluded, unless the Supplier informs the Purchaser in writing of the Supplier’s rejection of the Order (which rejection may be also expressed by counteroffer) within 2 (two) working days following the Supplier’s receipt of the Order in question.
2.2 Purchaser's right to revoke Orders. Without incurring any liability or expense or any obligation to indemnify or to pay damages, the Purchaser shall be entitled to revoke the Orders or to terminate the contracts entered into on the basis of said Orders, in whole or in part, by sending written notice to the Supplier prior to the latter's acceptance (in whatever manner) of the Order or, at the latest, within 10 (ten) working days following said acceptance of the Order.
2.3 Manufacture of Products pursuant to the Purchaser's instructions; Exclusivity. Where the Order refers to Products to be manufactured specifically for the Purchaser, pursuant to the Purchaser’s instructions (which may be more or less detailed) and differing, even if in only one or more particulars, from the products normally manufactured and/or sold by the Supplier (the "Special Products"), the Supplier shall manufacture said Products exclusively for and on behalf of the Purchaser and shall supply said Products only to the Purchaser, unless otherwise agreed by the Parties in writing.
2.4 Purchaser's right to terminate the contract. If the Products ordered are standard Products of the Supplier (that is, Products not falling within the category of Special Products), the Purchaser shall be entitled to terminate, in whole or in part, the contract entered into on the basis of the Order in question, by giving written notice to the Supplier within 10 (ten) working days following the Supplier's delivery of the Products. In such case, the Purchaser shall return the Products in question within 10 (ten) working days following the Purchaser's notice of termination, it being understood that, unless otherwise agreed, the Purchaser shall return the Products to the Supplier's warehouses and shall bear the relevant transportation costs and expenses but shall incur no obligation of any sort to indemnify or pay damages to the Supplier.
3. Delivery of the Products – Liability for early or late delivery – Packaging - Documents
3.1 Manner of delivery. All Products shall be delivered to the Purchaser in accordance with the manner of delivery, delivery dates and quantities specified in the relevant Order, regardless of the manner in which said Order was accepted. Unless expressly provided otherwise in writing, deliveries shall be made "EXW - Ex Works" (Supplier's factory), if the Supplier's registered office is in the European Union, or FOB - Free on Board (agreed port), if the Supplier's registered office is outside of the European Union, it being understood that said commercial terms and any other commercial term agreed upon by the Parties and substantially coinciding with one of the ICC Incoterms® shall have the meaning given to it in the latest edition in force of the ICC Incoterms®, published by the International Chamber of Commerce.
3.2 Early or late delivery. The delivery dates indicated by the Purchaser in the Order shall be deemed obligatory and binding for the Supplier. Partial deliveries or divided deliveries are allowed only if previously authorized by the Purchaser in writing. Unless expressly requested by the Purchaser, early deliveries shall be allowed only if the Products are delivered in the same calendar month as the agreed delivery date. The Purchaser therefore reserves the right to return to the Supplier, at the Supplier's cost and expense, any Products delivered prior to the beginning of the calendar month of the agreed delivery date (e.g., prior to September 1 if the agreed delivery date is in September), in which case said Products shall be deemed not to have been delivered. In any case, early delivery of the Products shall not entitle the Supplier to a corresponding earlier payment of the purchase price and the due date for payment of the purchase price shall still be calculated with reference to the delivery date originally agreed upon. Should the Purchaser decide, in its sole discretion, to accept a delivery prior to the first day of the calendar month of the agreed deliver date, the Purchaser shall be entitled to charge the Supplier for the storage costs deriving from said early delivery, in the amount and/or at the rates of which the Purchaser shall notify the Supplier in writing in advance, and to set off said costs against any sum owed by the Purchaser.
3.3 Liability for late delivery, penalty; set off. The Supplier shall inform the Purchaser as soon as the Supplier becomes aware of a possible delay in delivery of the Products, as compared with the agreed delivery dates. Without prejudice to the Purchaser’s right to recover any additional damages suffered and to any other remedy available to the Purchaser, if the delivery of the Products is delayed, as compared with the delivery dates indicated in the Order, the Supplier shall pay the Purchaser a sum equal to 5% (five percent) of the purchase price of the late Products, for each week of delay, up to a maximum of 30% (thirty percent). The Purchaser shall be entitled to set off said sums due from the Supplier against any payment due from the Purchaser to the Supplier, even if the amount of the Purchaser’s credit is not yet certain and determined and if the payment deadline has not yet expired.
By accepting a late delivery of Products, the Purchaser shall not be deemed to have waived, in whole or in part, the Purchaser’s rights pursuant to this article 3.3. In addition, if the delay in delivery of the Products exceeds 2 (two) working days (as compared with the agreed delivery date), the Purchaser shall be entitled to revoke the relevant Order in whole or in part and/or to terminate the relevant contract for breach pursuant to art. 1456 of the Italian Civil Code, upon written notice to the Supplier.
3.4 Quantitative tolerance. The Purchaser reserves the right to return to the Supplier, at the Supplier's cost and expense, any Products delivered exceeding the quantities specified in the relevant Order, regardless of the manner in which said Order was accepted. Unless otherwise agreed in writing, as concerns Special Products only, the delivered quantities may exceed those ordered by no more than 5% (five percent).
3.5 Marking; packaging. The Supplier's marking, packaging, labeling and identification of the Products shall be in compliance with the Purchaser’s written instructions as set forth in the Order or elsewhere. In the absence of instructions from the Purchaser, the Products shall be packaged in accordance with the best market practice and, in any case, in such a way as to ensure that they may be easily checked and separated during unloading, to protect the Products and to ensure the safety of those handling them; moreover, a label, containing at least the following information, shall be adequately attached to each loading unit: (i) identification of the Product, (ii) quantity of Products contained in the loading unit and/or package, (iii) traceability details (as a rule: number and date of production of each production batch), and (iv) in the case of Special Products, the Purchaser's product code.
Unless otherwise agreed, the Products shall be arranged on pallets in compliance with the Purchaser's written instructions as set forth in the Order or elsewhere, in order to enable them to be safely lifted and unloaded. If the Supplier fails to comply with said instructions, the Purchaser shall be entitled to return the Products in question to the Supplier, at the Supplier's expense, or to charge the Supplier for the costs incurred by the Purchaser in unloading said Products and to set off said charges against any sums owed by the Purchaser to the Supplier.
3.6 Delivery documents; origin of the Products. The Supplier shall deliver to the Purchaser, together with the Products, (i) the relevant manuals, use and maintenance instructions, where applicable (ii) delivery documents complying with applicable laws (for example, transport, delivery or shipment documents, customs documents, quality or conformity certifications) as well as (iii) any further documents previously requested by the Purchaser. In addition, before delivery of the Products the relevant transportation document (DDT), fully completed, shall be sent by e-mail to the following address: email@example.com.
Except as otherwise agreed in writing, on or before November 30 of the year preceding the delivery, Suppliers which manufacture and supply the Products to the Purchaser, in the context of an on-going or periodic supply relationship, shall provide the Purchaser with a long-term supplier's declaration on the Supplier's letterhead and signed by a duly authorized representative of the Supplier, attesting the non-preferential and/or preferential origin of the Products and the relevant place/s of manufacture, or such other documentation as the Purchaser considers adequate for said purpose, based on the industry practice.
Suppliers which are dealing with the Purchaser as resellers shall declare the non-preferential and/or preferential origin of the Products and the relevant place/s of manufacture in the relating transportation document (DDT).
If the documentation supplied to the Purchaser is incomplete or late or does not comply with these General Conditions and/or with the Purchaser's instructions, the payment deadlines for the relating invoices shall be calculated from the date on which the Purchaser receives complete and conforming documentation.
4. Prices and payment conditions
4.1 Prices. The prices indicated from time to time by the Purchaser in each Order (regardless of the manner in which said Order was accepted), shall be deemed to be fixed and invariable. Unless otherwise agreed, the prices shall be deemed to include all costs and expense of the Supplier up until the delivery of the Products to the Purchaser at the place of delivery indicated from time to time in accordance with the agreed ICC Incoterm®; the Supplier shall also bear the packing expenses.
4.2 Invoicing; Payment conditions; suspension of payment. The invoices for the Products shall be issued by the Supplier in accordance with the specific operating instructions provided by the Purchaser to the Supplier in writing. Subject to the provisions of article 3.6 above, the Purchaser shall pay the price for the Products to the Supplier in accordance with the payment terms and conditions set forth in the relevant Order, regardless of the manner in which said Order was accepted. It is understood that the Purchaser shall be entitled to suspend payments at any time in the event of breach by the Supplier or if circumstances arise which make it appear reasonably plausible that the Supplier will not duly perform its obligations. Any such suspension of payment shall not, however, entitle the Supplier to suspend performance of its contractual obligations to the Purchaser.
5. Warranty - Claims - Remedies - Supplier's Liability
5.1 Supplier's Warranty. The Supplier warrants to the Purchaser the Products are (i) in compliance with the purchase contract entered into on the basis of these General Conditions (and, in particular, with the agreed drawings and technical specifications), (ii) in compliance with the technical rules and regulations applicable to the Products, Regulation (EC) 1907/2006 (REACH), Directive 2011/65/EU (RoHS2) and Regulation (EU) 2017/821 (conflict minerals) of the European Union as amended, as well as all rules and regulations governing the environment and health and all other rules and regulations in force in Italy and in the place for which the Products are destined, provided that the Supplier was made aware of said place of destination prior to delivery and (iii) free from all defects, including defects in manufacturing, design and materials. As concerns Products that are intended to function, the Supplier further warrants the proper functioning of the Products.
5.2 Warranty period; claims for any nonconformity or defects of supplied Products. The warranty shall be valid for 24 (twenty-four) months, starting from the date of delivery of the Products to the Purchaser. The Supplier acknowledges that the Purchaser purchases the Products for resale to the Purchaser's customers. The Supplier's warranty shall also apply to Products which have already been sold and delivered by the Purchaser to its customers and the Purchaser shall be entitled
to make written warranty claims to the Supplier, in respect of nonconforming or defective Products supplied, no later than 60 (sixty) days following the date on which the Purchaser’s customer informs the Purchaser of the relevant nonconformity or defect. If a Product is replaced, the warranty period for the new Product in question shall begin anew, as of the date on which the replacement Product is delivered to the Purchaser.
5.3 Remedies; liability of the Supplier. In the event of nonconforming or defective Products, the Purchaser shall be entitled, in its sole discretion, (i) to refuse delivery of said Products, request that the Supplier pick up and repair the Products or, if that is not possible, replace the Products, at the Supplier's cost and expense, within 3 (three) working days following the Purchaser's request or (ii) to repair said Products itself or have them repaired by third parties, at the Supplier's expense and after having informed the Supplier thereof. If the repair or replacement of the nonconforming or defective Products is not possible or does not take place within said 3-working day period, then within 30 (thirty) days following the date of the warranty claim, the Supplier shall reimburse the Purchaser for the price of the nonconforming or defective Products plus any costs borne by the Purchaser, in accordance with the debit note issued by the Purchaser to that end. In any case, the Supplier shall identify the cause/s of the defect and implement the relating corrective measures in order to eliminate said cause/s, no later than 5 (five) working days following the date on which the Purchaser informs the Supplier of the nonconformity and defects.
5.4 Acceptance with reservations. If the Purchaser informs the Supplier in writing of a nonconformity or defect in the Products, using the term "acceptance with reservations" or the like, and does not ask the Supplier at that time to provide the remedies referred to in article 5.3 above, the Purchaser shall be deemed thereby to have reserved the right subsequently to enforce any and all of its rights pursuant to these General Conditions and applicable law, even following a claim of nonconformity or defects by the Purchaser's customer. Therefore the Purchaser's "acceptance with reservations" of nonconforming or defective Products shall not cause the Purchaser to lose any right and shall not constitute a waiver by the Purchaser of the Supplier's warranty or release the Supplier therefrom.
5.5 Further rights of the Purchaser. The Purchaser shall be entitled to set off the sums owed by the Supplier pursuant to article 5.3 above against any sum the Supplier claims to be owed by the Purchaser, even if the amount thereof is not yet certain and determined and if the payment deadline has not yet expired. Where the defectiveness or nonconformity of the Products becomes evident before the price has been paid, the Purchaser may refuse to pay the price or suspend payment of the price of said Products until such time as the nonconformity and defects have been eliminated, if it is possible to eliminate them in time. In any event, the Purchaser shall be entitled to compensation for the damage suffered, to terminate the contact and to any other right provided to the Purchaser by law.
5.6 Supplier's Liability toward third parties. If, as a result of the Supplier’s breach of any of the provisions of this article 5 or in any case of product liability, the Purchaser is liable to third parties for any damage caused by the Products (including any injury to persons or damage to property), the Purchaser shall timely inform the Supplier and the latter shall hold harmless and indemnify the Purchaser from and against any and all losses, damages, liabilities, costs and expenses, including attorney's fees, arising from any claim or action of third parties, it being understood that, in the event of a legal action, the Purchaser shall be entitled to bring the Supplier into the action as a third party defendant; the Supplier hereby further agrees to take all action necessary to protect the Purchaser in respect of the foregoing and to obtain suitable insurance coverage for said risks.
5.7 Supplier's liability for actions of its personnel. In addition, the Supplier shall be liable for any and all losses, damages, liabilities, costs and expenses, including attorney's fees, suffered or incurred by the Purchaser, arising from any breach of the obligations provided for in these General Conditions or from any breach of the obligations deriving from applicable law, by the Supplier’s employees and/or any associate, collaborator and/or subcontractor of the Supplier.
5.8 Recall campaigns, withdrawal from the market, repair or replacement. The Supplier shall be legally responsible to the Purchaser, even after the warranty period has expired, for any liability relating to recall campaigns, withdrawal from the market and repair or replacement of the Products, whether (i) following an order of the competent authorities or (ii) following the detection of nonconformity or defects, even after the Products have been placed on the market, and intended to verify the extent of the defective batches and resolve the problem, or for any other similar reasonable purpose. Before any recall campaign, withdrawal from the market or repair or replacement of the Products, the Purchaser shall give notice to the Supplier, offering the Supplier the possibility to participate in said campaign and shall discuss with the Supplier how to conduct the campaign most efficiently, unless the urgency of the matter makes such notice or cooperation impossible. The Supplier shall hold harmless and indemnify the Purchaser from and against any and all losses, damages, liabilities, costs and expenses, including attorney's fees, arising from any recall campaign.
6. Termination without cause – Termination for breach
6.1 Termination without cause. If Orders are placed in the context of an on-going or periodic supply relationship, the Purchaser shall be entitled to terminate the contractual relationship at any time, thereby also terminating all supplies which have not yet been fully performed, upon at least 90 (ninety) days’ prior written notice to the Supplier, sent by registered mail, return receipt requested. The Supplier represents that said notice period is adequate in light of the nature of the Supplier’s business.
6.2 Termination for breach. Without prejudice to the Purchaser's right to recover damages or to any other termination right of the Purchaser provided for in these General Conditions, each contract governed by these General Conditions may be terminated by the Purchaser, in whole or in part, with immediate effect, upon written notice sent to the Supplier by registered mail, return receipt requested, if the Supplier breaches any of the Supplier’s contractual obligations or any other legal obligation of the Supplier and fails to remedy said breach within 15 (fifteen) days following written notice of breach from the Purchaser, provided that the breach is susceptible of being remedied in full within said term.
7. Protection of intellectual property - Confidential Information - Ownership of rights - Supplier's liability
7.1 Protection of intellectual property. The Supplier warrants to the Purchaser that, to the extent that they do not originate directly from drawings and/or technical specifications supplied to the Supplier by the Purchaser, the Products and the relating documentation do not violate any copyright, patent or other intellectual property right of third parties and that there is no action pending before any court for infringement of intellectual property rights by, or in respect of, said Products and/or their documentation. Without prejudice to the provisions of article 7.4 below, if the Supplier breaches said warranty and, in particular, if the manufacture and/or supply of the Products and/or the relating documentation is prohibited, the Supplier shall, at its own expense, obtain the right to continue to manufacture and supply to the Purchaser said Products and documentation or replace them with equivalent, non-infringing Products and/or documentation, if it is possible to do so in time.
7.2 Confidential information. The Purchaser shall remain the sole owner of any document, drawing, model, plan, data, technical or industrial information (whether on paper or in machine readable format) sent, delivered and/or communicated, even orally, by the Purchaser to the Supplier or of which the Supplier became aware in any way, before or during the performance of the contract (the “Confidential Information”). The Supplier therefore agrees to use said Confidential Information only as shall be necessary for the proper performance of the contract, not to reproduce the Confidential Information or disclose it to third parties without the Purchaser's prior written consent and to take all reasonable measures with the Supplier’s personnel in order to ensure the protection thereof. Therefore, for the entire term of the confidentiality obligations, the Supplier agrees not to use the Confidential Information in connection with the Supplier’s business, directly or indirectly to manufacture and/or sell products or provide services containing Confidential Information, other than for purposes of duly performing the contract with the Purchaser; the Supplier further agrees, for a period of 5 (five) years beginning from the date of disclosure of the relevant Confidential Information, not to seek or in any case accept assignments from or engagement by the Purchaser's customers, of which the Supplier becomes aware during the performance of the contract and/or not to work for said customers, directly or indirectly, using the Confidential Information. Regardless of how the Confidential Information has been transmitted to the Supplier, the Supplier shall return it to the Purchaser (together with all documents and materials supplied by the Purchaser for purposes of performance of the contract or in any case belonging to the Purchaser) as soon as it/they is/are no longer necessary to the Supplier for purposes of performance of the contract. The Supplier shall comply with these obligations even when the Purchaser sends or communicates to the Supplier Confidential Information belonging to third parties. The confidentiality obligations shall remain in force following the performance of the contract and shall survive the termination of the contract for whatever reason, until such time as (i) the Confidential Information enters into the public domain for reasons not attributable to the Supplier or (ii) the Purchaser agrees in writing that said information is no longer to be considered confidential. The Purchaser shall have no liability arising out of or relating to the Confidential Information disclosed by it.
7.3 Ownership of intellectual property rights. The Supplier acknowledges that (i) where, pursuant to the contract, the Supplier draws up the plans for or designs the Product or develops the characteristics of the Product, exclusively for the Purchaser, based on instructions from the Purchaser (which may be more or less detailed), the Purchaser shall be the sole owner of all intellectual property rights in the Product itself and in the drawings and plans thereof and (ii) said exclusive rights were taken into consideration in determining the price of the supply. The Supplier shall not use, in any way, drawings, models or other intellectual property rights of the Purchaser for purposes other than the performance of the contract governed by these General Conditions, it being understood that, in any case, the Supplier’s limited use thereof shall not be deemed to constitute a right or license of the Supplier.
7.4 Supplier's liability. The Supplier shall hold harmless and indemnify the Purchaser and the Purchaser’s customers from and against any and all liabilities, losses, damages, costs or expenses of any sort, including attorney’s fees, incurred by the Purchaser and deriving from any claim or action of third parties in respect of the Products purchased from the Supplier and alleging, without limitation, infringement of third party intellectual property rights or breach by the Supplier of its obligations under these General Conditions.
8. Purchaser's assets
The Purchaser is and shall remain the owner of all equipment, molds, technical drawings and other materials supplied by the Purchaser to the Supplier, made by the Supplier in performance of the Order or in any case paid for by the Purchaser. Each asset owned by the Purchaser shall be (i) adequately identified and marked by the Supplier as property of the Purchaser, (ii) safely stored (separately from the Supplier's own assets, if possible), at the Supplier's expense and (iii) kept free from any sort of encumbrance and/or claim of third parties. Except as required for the performance of the Order, the Supplier shall not use, deliver or make available to third parties any of the Purchaser's assets or any goods manufactured or made, in whole or in part, using the Purchaser's assets. As long as they are in the Supplier's custody or under the Supplier's control, the Purchaser's assets shall be kept at the Supplier's risk and insured by the Supplier, at its own expense, for an amount equal to their value. Upon the Purchaser's request or, in any case, as soon as the Order has been duly performed, the Supplier shall return the Purchaser's assets in the same condition in which the Supplier originally received them, except for reasonable wear and tear.
9. No assignment of contract and relating receivables; conditions of subcontracting
9.1 No assignment. Without the Purchaser's prior written consent, the Supplier shall not assign to third parties, in whole or in part, the Purchaser’s Orders and the contracts entered into on the basis of these General Conditions. Moreover, the Supplier shall not assign receivables from the Purchaser or enter a delegation of payment agreement of any sort without the Purchaser’s prior written consent.
9.2 Conditions of subcontracting. If the Supplier subcontracts its contractual obligations in whole or in part, the Supplier shall remain liable to the Purchaser, jointly and severally with the subcontractor, for the performance of the Supplier’s obligations under the contract and shall include in its agreement with the subcontractor all of the Supplier’s own obligations pursuant to these General Conditions.
10. Applicable law – Venue
10.1 Applicable law. The contracts entered into on the basis of these General Conditions shall be governed by Italian law. The United Nations Convention on Contracts for the International Sale of Goods, signed in Vienna on April 11, 1980, shall apply, in particular, to international sales.
10.2 Venue. All controversies arising out of or relating to these General Conditions shall be resolved exclusively by the courts of Bologna, Italy. As a partial exception to the foregoing, the Purchaser shall be entitled, in its sole discretion, to bring an action against the Supplier before the competent courts for the place/s in which the registered office, warehouses or other offices of the Supplier are located.