In these general purchase terms and conditions (hereafter, “General Conditions”) the following expressions have the meaning hereafter indicated:
“Specification”: document agreed between MULMIX and the Supplier which defines technical, functional, quality and reliability characteristics of a specific Product;
“Supply contracts”: contracts for the supply of Products agreed from time to time between MULMIX and the Supplier with the procedure laid down in the following Article 2, namely Purchase Orders which require an order confirmation by the Supplier or separated supply agreements;
“Supplier”: the Society identified as signatory at the bottom of these General Conditions and/or to whom a Purchase Order is addressed from MULMIX and/or signatory of a separated supply agreement;
“Technical Information”: drawings, technical documents and all the information, in general, provided by MULMIX to the Supplier for the execution of the Supply Contract;
“MULMIX”: Mulmix S.p.A.
“Purchase Order”: Open Order and/or Closed Order;
“Open Order”: a request from MULMIX addressed to a Supplier for the purchase/supply of Products, without initial determination of the quantity, which includes the emission from MULMIX of Logistical Programs;
“Closed Order”: a request from MULMIX addressed to a Supplier for the purchase/supply of a certain amount of Products;
“Parties”: it means the Supplier and MULMIX, together;
“Product”: the product which will be sold by the Supplier to MULMIX and is specifically identified in the Supply Contract;
“Logistical Programs”: periodical delivery schedules through which MULMIX indicates to the Supplier the quantity to be delivered, as well as the exact delivery deadline and the place in which the Products will be delivered;
“Operational Regulation”: standard, specifications, rules, circulars, procedures and other similar regulation, from time to time communicated or disclosed to the Supplier, who rules and specifies the implementing rules of Supply Contracts;
“Singular/Plural Terms”: in these General Conditions, any reference to singular form words will include also the plural form and vice versa.
MULMIX agrees to purchase and the Supplier agrees to sell the Products according to terms and conditions contained in these General Conditions, provided that the commitment from MULMIX to purchase the Products will be created from time to time after issuing an Open Order (and related Logistical Program) or a Closed Order, namely through subscription by both parties of a separated supply agreement.
In case of disputes or incompatibility between these General Conditions and specific agreements between the Parties in separated Supply Contracts, the latter will prevail.
The Supplier claim to accept in full these General Conditions and refrain from enforcing its general conditions of sale, everywhere reported, against MULMIX.
Any modification or integration to these General Conditions will be agreed in writing between MULMIX and the Supplier.
Therefore, any clauses made by the Supplier in its invoices, notes, offers, mail, also in electronic form, or in any other document, opposed to or in addition to these General Conditions and/or Supply Contracts and/or Purchase Orders and/or Specification and/or Operational Regulation, and not expressly accepted in writing by MULMIX, will be considered ineffective.
2. SUPPLY CONTRACT FORMATION
The Supply Contract is formed through the issue by MULMIX and the acceptance by the Supplier of a Purchase Order with the issue of the order confirmation, namely through the subscription by both Parties of a separated supply agreement.
The order confirmation must indicate the number of Purchase Order, the exact indication of the ordered Products with possible reference to their product code, their quantity, unit and total price, payment terms, place of destination and possible further instructions for the delivery.
If the order confirmation is not received by MULMIX within 5 days from the issue of the Purchase Order, the latter could be revoked by MULMIX after informing the Supplier.
The start of the execution of the supply which is subject of the Purchase Order from the Supplier constitutes acceptance of the Purchase Order and of these General Conditions by the Supplier, also in the absence of other formalities.
The acceptance of the Purchase Order leads to the acceptance in full and unconditional of all conditions, here provided, as well as these General Conditions.
3. MODIFICATIONS AND UPDATES
The Supplier, with the acceptance of the Purchase Order, namely with subscription by both parties of a certain separated supply contract, acknowledges that he examined carefully the technical, functional and visual characteristics of the Products and undertakes to supply the Products in conformity with Specification and/or Technical Information and not to modify anything during the production/processing non-complying with the Specification and/or Technical Information.
It is understood that possible technical updates/modifications, both in the production process and in the Product, will be made by the Supplier after informing and receiving the written consent from MULMIX on time and in accordance with the agreed arrangements for the supply.
4. PACKAGING AND TRANSPORT
The Supplier must deliver the Products in packs/packaging fit for transport (and according to the needs of MULMIX, when specified) in order to prevent damages and quality problems.
If the Products are delivered at MULMIX’s establishment with damaged packaging, MULMIX has the right to refuse the shipment and to ship it back to the Supplier, by charging every cost.
5. DELIVERY, DELAY AND PENALTY
The Supplier must deliver the Products according to the quantity and time and places agreed in the Supply Contract.
Unless otherwise stated in written form, the Products will be delivered FCA (Incoterms ® 2010) in Campo San Martino (PD), Via Palladio, 7, Italy, and therefore entirely at the risk and expense of the Supplier.
The delivery terms, which are indicated in the Supply Contract, are binding and essential.
Partial deliveries, as well as deliveries of quantities higher than those agreed, are not acceptable, unless stated otherwise by both parties in written form.
In the event that a non-compliance in the quantity of the Products is detected, MULMIX will have the power to:
- Accept the differences in the quantities with the possibility of increasing or reducing the quantities of the following Purchase Orders;
- Reject the part of the supply which resulted exceeding, with the possibility, if the Supplier does not proceed with immediate withdrawal, of sending the surplus back to the Supplier, at the risk and expense of the latter, or by charging to the latter all storage costs;
- Except as provided for at the following last comma concerning penalty and recession power, in case the total non-delivery is to such an extent that it causes the incompleteness or the suspension of production, ask to the Supplier to proceed immediately to send the missing Products, it being understood that any extra burden or expense (including potential extra costs due to urgent logistical needs) will be retained by the Supplier.
The Supplier, at the moment of delivery, will provide also the necessary documentations, appropriate to the regular usage of the Products (such as, for instance, instruction manuals, manuals for the functioning, the installation and the assembling, guarantee certificates, etc.).
The Products will be considered as received at the time of the signature of the waybill by MULMIX personnel in charge of receiving the goods.
In case of late delivery or non-delivery, MULMIX will have, of its choice, the following powers:
- Demand the immediate execution of the Supply Contract, in full or in part, notwithstanding the provisions of section (iii); and/or
- Supply to third parties, at any time, in full or in part, the ordered Products, at the risk and expense of the Supplier, with the exclusive obligation of communicate this to the Supplier; and/or
- In case the non-delivery or late delivery is to such an extent that it causes the incompleteness or the suspension of production, MULMIX will have the power to retain by the Supplier related fix costs and costs of unused labour and/or additional labour necessary for the recovery, without prejudice to any other right for the recovery, damage, costs, etc.
This is without prejudice to the right of MULMIX to retain by the Supplier an amount equal to 2% of the total amount of Products non-delivered within 5 working days of delay, provided that the maximum amount of these additional charges, applicable from time to time to each single delay, cannot exceed the percentage of 10% of the total amount of non-delivered products. This total amount represents a damage assessment made together as a precautionary measure by MULMIX and the Supplier and it shall not preclude MULMIX’s right to seek compensation for the possible greater damage as well as, in case this maximum amount is exceeded or in the case of a delay exceeding 15 working days, MULMIX’s right to terminate the Supply Contract, with immediate effect, as a matter merely requiring notification.
6. PRICES AND PAYMENTS
The prices indicated in every Purchase Order, which will be confirmed by the Supplier thereafter, or in specific Supply Contracts, are fix and non-variable. Possible price increases due to product modifications must be communicated in advance by the Supplier and, in any case, they will be considered as valid and binding for MULMIX only if accepted by the latter in advance.
Invoices must be prepared, issued and managed in accordance with the rules and the operating procedures indicated by MULMIX.
MULMIX will make the payment in the manner and within the deadline indicated in the Supply Contract, subject to the receipt of invoices, duly completed, as well as of every type of related documentation, where the law so requires.
7. WARRANTY ON THE PRODUCTS
The Supplier guarantees the Products provided in implementation of the Supply Contract without any faults and/or defects for a minimum period of time of 24 (twenty-four) months from the date of delivery at the plants and/or establishments or other possible destinations agreed by both Parties.
The Supplier undertakes to supply the Products with CE declaration within the packaging and with “conformity declaration inside” label.
The Supplier will remain in any case responsible for the quality of supplied Products, also in the case of inspection by MULMIX at the moment of their receipt.
The complaint against possible faults and/or defects must be made by MULMIX within 60 (sixty) days from their discovery. In this case MULMIX can, at its own unquestionable choice, make use of one of the following options:
- To invite the Supplier to provide for the selection, at its own expenses, of the Products which comply with the qualitative conditions agreed and to repair those defected;
- To ask for the substitution of non-compliant Products or of the whole batch to which these belongs; all the expenses for the returning will be borne by the Supplier;
- To reject non-compliant Products or the whole batch to which these belongs; all the expenses for the returning will be borne by the Supplier.
In any case, MULMIX has the right to seek compensation for the possible greater damage deriving from the defects/non-conformity of the Products. If the Supplier does not proceed immediately to remedy reported defects, MULMIX is authorized, in case of urgency and, in particular, to avoid immediate risks or prevent greater damage, to carry out directly or indirectly, through third parties, each appropriate re-work, at the expense of the Supplier.
The costs related to the supply of defected Products, in particular concerning operating costs and costs for the analysis of the problem, transport, processing and labour costs, the cost of scrapped materials in the selection or reprocessing, line stop (at MULMIX or at the final client), shipment of material to be analyzed, audit at the Supplier, materials or costs for inspections or checks will be borne by the Supplier.
The Parties agree that if MULMIX disputes the supply for whichever cause or reason, MULMIX can suspend the related payment until the dispute will be solved satisfactorily for MULMIX.
The payment of the invoices does not represent the acceptance of the Products by MULMIX who will have the right to challenge the supply and to repeat the payment towards the Supplier besides the compensation for all damages suffered, without exception.
8. PRODUCT LIABILITY
In the event that final customers, third parties or Italian foreign or supranational authorities, at any time, challenge MULMIX for the non-compliance with the laws concerning safety, health and environmental protection and/or construction standards and/or type approval rules etc. as a result of stated defects, non-compliance with legislative or regulatory requirements, non-assurance or lack of security of the Products, the Supplier, without prejudice to his responsibilities, where appropriate, towards the damaged part or towards the authorities, will be obliged to indemnify MULMIX in respect of the competent authority and/or the damaged part.
The Supplier should bring evidence to MULMIX of having signed an adequate insurance policy for the coverage of the warranty and of product liability.
The Supplier undertakes to keep at its own stores, at its expenses and for the whole duration of the supply, an adequate reserve of the Products evaluated on the basis of monthly requirement indicated in supply programs, and to restore it immediately in case of use in order to respect Purchase Orders.
10. REASONS OF FORCE MAJEURE
In the event that the Supply Contract cannot be executed on time because of the occurrence of circumstances of force majeure, the delivery terms are extended and the new term will be established by mutual agreement between MULMIX and the Supplier in relation to the impediment (in this regards, it is clarified that the responsibility of the Supplier is never excluded in case of strike).
This is provided that the Supplier has urgently informed MULMIX, by fax confirmed by registered mail or certified email (p.e.c.), of the onset of the circumstance of force majeure and it has taken all the necessary measures capable of limiting the effects.
The circumstance of force majeure cannot be invoked when it arises after the deadline of the delivery date agreed by both Parties.
Moreover, it is specified that delays by sub-suppliers will not be considered as reasons of force majeure, unless proof that these retards were caused by force majeure is given.
If the circumstance of force majeure is such as to lead to a delay in the delivery incompatible with MULMIX’s productive needs (suspension of production), the latter will have the right to supply the Products to third parties.
11. LEGISLATIVE REGULATIONS
The Supplier must respect the laws concerning the treatments of its employees, environmental, health and safety protection in the workplace.
12. EXPORT CONTROL AND CUSTOMS
The Supplier undertakes to respect the existing legislation, which is applicable in terms of customs and import/export.
The Supplier shall inform MULMIX of possible requirements related to import/export licenses of Products on the basis of Italian or foreign legislation on export control and on customs regulations and, at the same time, the Supplier shall inform MULMIX of the legislation on export control and on customs regulations existing in the Country of origin of the Products.
Therefore, at least in Offers, order confirmations and in invoices, the Supplier must communicate the following information concerning the Products:
- Number of export list;
- Country of origin of the Products and their components, including technology and software; customs tariffs of Products;
- Reference person, within the company, available, on request, to provide further information.
On request, the Supplier will provide further data in writing on foreign trade of these Products and will inform MULMIX of possible changes.
13. INTELLECTUAL PROPERTY
Unless otherwise agreed by both Parties in writing, the ownership of drawings, descriptions, calculations and of everything implemented by the Supplier will be transferred to MULMIX at the moment of their realization without incurring an obligation for remuneration borne by the latter. This is the reason why the Parties agree as of now that the Supplier will not have any right on these works, which will be fully owned by MULMIX.
All the documents above-mentioned shall be delivered to MULMIX in original as soon as completed.
Technical information made available by MULMIX shall be carefully preserved and kept in a safe place. Technical information are owned by MULMIX and shall be used by the Supplier exclusively for the execution of the Supply Contract. For the execution of the Supply Contract, the Supplier shall not copy, reproduce and divulgate the technical information to third parties.
Unless differently agreed by the parties, in the case of research, project, test or development work is effectuated by the Supplier in execution of a specific assignment of MULMIX , the invention or the intellectual property rights, drawings and technical results will be of exclusive property of MULMIX. The Supplier will immediately communicate it to MULMIX and, on request of the latter, will make available to the latter the documentation and information necessary or useful for its productive implementation.
The Supplier represents and guarantees that the Products and their documents do not violate any patent, copyright and/or whichever other intellectual or industrial property right of third parties and that no legal action is pending or is threatened in this respect.
The Supplier undertakes to indemnify by any claim or action of third parties in this respect which can interfere with the free production, sale and use of the Products (forcing itself to provide a ready definition, at its own total burden, of every dispute in this regards, also out of court) and from any cost or damage which is suffered by MULMIX because of the breach of this warranty.
MULMIX will give to the Supplier ready communication in writing of every dispute receipt by third parties in this regards.
If, after a complaint, lawsuit or legal proceeding, MULMIX is been wary of selling or using a Product purchased by the Supplier, the Supplier undertakes to guarantee to MULMIX the continuity of the Supply, where appropriate, also by substituting the Product with a product that does not violate the intellectual or industrial property of third parties (by bearing all relative costs).
MULMIX can terminate the Supply Contract if notified in writing to the Supplier the non-compliance with the essential obligations laid down by these General Conditions, by the Supply Contract and/or by the Purchase Order and the Supplier did not remedy this non-compliance (unless it is an irretrievable non-compliance) within 30 days from the date of notification.
MULMIX will have the right to solve immediately whichever Supply Contract governed by the General Conditions, if the Supplier is non-complying even only one of the laws concerning “Modifications and updates” (art. 3), “Delivery, Delay and Penalty” (art. 5), “Warranty on Products” (art. 7), “Stocks” (art. 9), “Legislative Regulations” (art. 11), “Export Controls and Customs” (art. 12), “Intellectual Property” (art.13).
MULMIX reserves the right to terminate in advance whichever existing Supply Contract with the Supplier if:
- A third company acquires, directly or indirectly, the majority of shares or gain control of the Supplier, it being understood that the Supplier undertakes to communicate to MULMIX this event within 15 (fifteen) days from its occurrence;
- The Supplier is subject to bankruptcy proceedings, agreement with creditors, or other insolvency procedure, or it is non-compliant or unable to comply with its own financial and commercial obligations.
In all cases, the termination of Supply Contract will occur by written notification of MULMIX’s decision to the Supplier, without prejudice to MULMIX’s right for compensation for all damage.
The Supplier and MULMIX undertakes to maintain a strictly confidential policy and not to disclose to third parties, without the consent of the other Party, any document or information, both commercial or technical, classified as confidential by the party who send them to the other party with regard to the Supply Contract, as a consequence the receiving part shall use the information only for the purpose deriving from the execution of the Supply Contract.
The Parties undertake not to disclose to third parties, including possible sub-suppliers, terms and conditions of the Purchase Order or Supply Contracts, except in the case this disclosure is imposed by law or authorized in writing by the Parties who has the confidential information.
16. APPLICABLE LAW AND COMPETENT COURT
These General Conditions are settled and interpreted on the basis of the Italian law.
For any dispute concerning General Conditions, the Court of Padua (Italy) is exclusively competent.
The Supplier undertakes to guarantee, for the whole duration of the Supply Contract, the competitiveness of the product, in terms of technological level, price, quality, reliability, technological and service level, with respect to similar and competitor products in the market which satisfy MULMIX’s requirements.
If a similar product is supplied at a lower price, guaranteeing at the same time equal or similar technological level, price, quality, reliability, technological and service level, MULMIX will give to the Supplier appropriate information to the greatest possible extent, provided that there are no confidentiality limits, and it will consent an appropriate period of time to present a plan in order to restore competitiveness. MULMIX undertakes to verify the plan to suggest to the Suppliers some rules for possible improvements, as well as to give support for its implementation, if possible. The presentation of a convincing plan in order to restore competitiveness, as well as its realization within the required time, are essential contractual obligations of the Supplier.
18. SAFEGUARD CLAUSE
Should one or more of these General Conditions and/or Supply Contract be judged as illegal or unworkable, by a competent court or authority, the remaining dispositions will remain fully existing and valid within the limits of the law and will not be affected, modified or invalidated, provided that the intention and the purpose of the Parties is not materially compromised.
The Supplier expressly welcomes, within the meaning and for the purposes of previous art. 23 and of the Italian Civil Code (articles 1341 and 1342), the articles of these General Conditions hereafter indicated:
- SUPPLY CONTRACT FORMATION
- MODIFICATIONS AND UPDATES
- PACKAGING AND TRANSPORT
- DELIVERY, DELAY AND PENALTY
- PRICES AND PAYMENTS
- WARRANTY ON THE PRODUCTS
- PRODUCT LIABILITY
- REASONS OF FORCE MAJEURE
- LEGISLATIVE REGULATIONS
- EXPORT CONTROL AND CUSTOMS
- INTELLECTUAL PROPRTY
- APPLICABLE LAW AND COMPETENT COURT
- SAFEGUARD CLAUSE