Terms & Conditions of Purchasing
Services and Assets
These Terms & Conditions of Purchasing (hereinafter “Terms and Conditions”) shall be considered as the commonly agreed terms and conditions applicable to any current and future purchase of Assets and/or Services by Seda International Packaging Group S.p.A., a company existing under the laws of Italy, and any of its Affiliates (hereinafter “Buyer”), to the legal entity or individual and any of their Affiliates that is indicated in the bottom of this set of terms and conditions or indicated in other document (such as, as matter of example only, RFP, RFQ, order, confirmation, contract proposal, contract acceptance) which this set of terms and conditions is attached to or is referred in, as the supplier of Assets and/or Services to the Buyer (hereinafter “Supplier”). These Terms and Conditions will automatically apply to any purchase of Assets and Services from the Buyer to the Supplier and shall prevail to any other different or inconsistent terms and conditions which are or will be submitted in future by the Supplier, unless specifically agreed otherwise in writing between the Buyer and the Supplier.
1. DEFINITIONS AND INTERPRETATION.
1.1 For the purposes of these Terms and Conditions, the following expressions shall have the meanings given below unless the context requires otherwise:
“Acceptance” means acceptance of the Services and/or of the Assets;
“Activity” or “Activities” means the supply of the Assets and/or the performance of the Services pursuant to the Purchase Order;
“Affiliate” means, with respect to any party hereto, an individual, corporation, partnership, firm, association, unincorporated organization or other entity directly or indirectly controlling, controlled by or under common control with such party. Where “control”, “controlling” and “controlled” shall have the meaning set forth in Article 2359, first paragraph, no. 1 of the Italian Civil Code;
“Change of Control” means the acquisition by any person or group with a beneficial ownership or power to vote of more than fifty (50) percent of the outstanding capital stock of the Supplier or the parent company of Supplier or the acquisition by any person or group of substantially all the assets of the Supplier;
“Change Order Request” means a written request by Buyer to Supplier;
“Customer Information” means any of Buyer’s customer and customer prospect information, sales information, and Buyer customer lists and updates;
“Defective Assets” mean any Assets that have a defect and/or do not meet the agreed Requirements or otherwise do not comply with the agreed terms and conditions;
“Assets” shall mean an asset (such as machinery, tool, equipment, plants, computer, software, building or parts thereof, etc) supplied by Supplier to Buyer pursuant to the Purchase Order as defined therein and in the applicable Technical Documentation;
“Indemnified Parties” means Buyer, its Affiliates and their respective directors, officers, employees, agents, and assigns;
“Intellectual Property Rights” means intellectual property rights and all other rights related to the Assets;
“Personnel” means any personnel employed or engaged by the Supplier or any of its subcontractors;
“Price” means any price, consideration or fees payable to Supplier by Buyer for the performance of the Services and/or the suppling of Assets, as more particularly detailed in the Purchase Order;
“Purchase Order” means any Buyer order issued by Buyer to Supplier or, as the case may be, any supply agreement entered into by and between Buyer and the Supplier;
“Requirements” means technical and/or functional requirements, features, dimensions, capacity, performance, properties and technical, safety and health standards that the Assets and the Services shall comply with and which shall be set out in the Technical Documentation;
“Services” means the services performed by Supplier under the Purchase Order as defined therein and in the applicable Technical Documentation;
“Supplier Retained Material” means any pre-existing Supplier materials, know-how, trademarks, software, plans, notes, data and information expressly identified in the Purchase Order;
“Technical Documentation” means any document agreed between the Parties which contains, as the case may be, Requirements, specifications, drawings, design, project, composition and list of raw materials, warnings, use and storage instructions or indications, service level agreement (SLA) and trial and acceptance protocols referred to or in connection with Assets and Services supplied by Supplier to Buyer. The Technical Documentation is an integrating part of these Terms and Conditions. Should the Technical Documentation include a list of the Buyer’s requested Requirements and the Supplier’s answer to such requests, in case of conflict between such two documents, the former shall prevail unless otherwise expressly agreed in writing by the Parties on a case by case basis. In case of conflict between a provision of these Terms and Conditions and a provision contained in the Technical Documentation, the latter shall prevail.
"Third Party Materials" means any equipment, supplies, facilities, computer code, work product, inventions or materials of any other party.
1.2 In the event of any inconsistency between these Terms and Conditions and the Purchase Order, the former shall prevail unless such Purchase Order expressly state otherwise and explicitly reference in its main body the relevant clause of these Terms and Conditions.
2. PURCHASE ORDER FOR SERVICES AND ASSETS.
2.1 Services and Assets. Supplier will perform the Activities in accordance with the Requirements, descriptions, specifications, fees and delivery schedule set forth in the Purchase Order, in the Technical Documentation and its attachments, if any, or with otherwise agreed in writing between the parties or, failing any of the above, as indicated in these Terms and Conditions.
2.2 Acceptance of the Purchase Orders. Supplier undertakes to notify in writing within forty-eight (48) hours its acceptance or non-acceptance of any Purchase Order issued by the Buyer. In case of first Purchase Order issued by the Buyer to a Supplier, the failure to make any notification within the above said term shall mean that the Supplier rejects the Purchase Order. In the case of Purchase Order issued after the Supplier’s acceptance of previous Purchase Order for the same Assets or Service, the failure to make any notification within the above said term shall mean that the Supplier accepts the Purchase Order. In this last case, the refusal of the Purchase Order must by reasonable justified by the Supplier. In any case, Supplier undertakes to send a written acknowledgement of receipt of a Purchase Order within forty-eight (48) hours to the Buyer. Failure to send the written acknowledgement entitles the Buyer to reject to take delivery of the concerned Assets or Services.
2.3 Lack of Buyer’s joint liability. The Buyer placing a Purchase Order shall be solely liable for the fulfilment of obligations related to the issued Purchase Order and neither these Terms and Conditions nor any issued Purchase Order create any joint or several liabilities for the Buyer, its subsidiaries, affiliates or associated companies also in case these latter are placing Purchase Orders to the same Suppliers.
2.4 Authority, Power, No Conflict. Supplier has all necessary right, power and authority and has taken all necessary action to enter into and perform the Purchase Order and these Terms and Conditions and to grant the rights herein.
2.5 Performance Standards. The parties shall consult and cooperate between them to coordinate the Activities with the tasks of Buyer's employees and other representatives. Supplier shall perform the Activities in an efficient and expeditious manner and shall ensure that all persons performing such Activities are properly trained, qualified and experienced to perform the same. Upon Buyer's request, Supplier shall remove any person that Buyer determines to be unsuitable, unqualified or otherwise objectionable from performing the Activities. In performing the Activities, Supplier and all persons performing such tasks on behalf of Supplier, when they are in the Buyer’s (or its Affiliates’) premises, shall comply with all policies, procedures and work rules in force at Buyer's (or its Affiliates') facilities that are communicated to Supplier or its representatives. Supplier shall fully cooperate with the Buyer for the purpose of compliance of work health and safety rules in force.
2.6 Reports. Supplier shall prepare and furnish reports to Buyer, upon request or as otherwise required by the Purchase Order, concerning Supplier’s progress on the Activities. Supplier shall provide the progress reports in the form and with the content reasonably requested by Buyer.
2.7 Use of Buyer facilities and/or equipment. In the event that Buyer provides Supplier with access to its facilities or with Buyer’s equipment (such as moulds, dies, patterns, blueprints, equipment and print origination and other tools and instruments) for use in the performance of the Activities, Supplier shall (a) not use any Buyer facilities and/or Buyer equipment to perform services for any person or entity other than Buyer without the prior written consent of Buyer, (b) assume the risk of loss for all such Buyer equipment while in the care, custody or control of Supplier, (c) take all reasonable precautions to protect the Buyer equipment against any loss, damage, theft or disappearance while in the care, custody or control of Supplier, and (d) take no actions which affect Buyer’s title or interest in such Buyer equipment. Supplier’s and its subcontractors’ personnel will have to be identified and properly recognizable when at Buyer’ facilities.
2.8 Changes to Activities. Buyer may from time to time request changes to the Activities by issuing a Change Order Request. Supplier shall promptly respond in writing to any Change Order Request, stating how such proposed modifications to the Activities shall affect the time and/or materials required for Supplier to perform the Activities.
3. PRICING AND PAYMENT.
3.1 Pricing. For timely delivery of the conforming Activities, Buyer agrees to pay the Prices according to the terms in the applicable Purchase Order. Supplier shall bear all expenses associated with its performance (including, e.g., delivery, assembling, installation, commissioning, trial and acceptance procedure, go live and any consumables), except as otherwise provided in these Terms and Conditions and in the Purchase Order.
3.2 Invoices/Manner of Payment. Supplier shall issue an itemised invoice to Buyer at the address shown on the Purchase Order. Invoices must contain identical itemisation of Activities as the Purchase Order. Unless otherwise expressly agreed in the Purchase Order, the payment of undisputed amounts due hereunder shall be made by Buyer to Supplier within one hundred twenty (120) days after Buyer’s receipt of properly submitted and correct invoice(s). The issuance of invoices and their payments is conditioned on the prior Buyer’s written authorization. At this regard, the Supplier shall submit a written request, together with the relevant documentation, to the Buyer for the validation of the Activities after their completion or, if so provided for in the relevant Purchase Order, according to the agreed time schedule stated therein. If Supplier does not invoice Buyer for its Activities within twelve (12) months after the above-mentioned authorization, Supplier hereby waives all right to payment or reimbursement by Buyer. Buyer may set off any amount owed by Supplier or any of its Affiliates to Buyer against any amount owed by Buyer or its Affiliates to Supplier under any Purchase Order and delay payment of any invoice pending correction of any errors or omissions. Under no circumstances may Supplier include on its invoices charges arising out of or related to researching, reporting on or correcting tax, accounting or reconciling errors or shortfalls concerning the same invoice of which it has been notified in writing. The Supplier is not entitled to assign or otherwise transfer to third parties its receivables or rights against the Buyer arising out of a Purchase order and its performance.
3.3 Guarantees. Unless otherwise expressly agreed in the Purchase Order, the Buyer may make the payment of the first and/or last instalments of the Price conditional to the prior delivery by the Supplier of a first demand autonomous guarantees in accordance to the format enclosed to the relevant Purchase Order, issued by a leading international Bank or Insurance Carrier for the payment of any amount due to the Buyer in case, respectively, (i) of Supplier’s failure to deliver the concerned Assets or supply the concerned Services and in such a case the guaranteed amount shall be the portion of Price paid by the Buyer and (ii) of Supplier’s failure to perform the warranty obligation for the duration of the warranty period and in such a case the guaranteed amount indicated in the relevant Purchase Order.
3.4 Taxes. The price for the Activities to be paid by the Buyer shall not be inclusive of any value-added tax (which shall be separately specified to Buyer) and other similar taxes, but inclusive of any duties or taxes levied by any governmental agency (including, but not limited to, those at state or municipal levels) or any other kind of mandatory contribution, charge or similar payment with respect to the Activities performed pursuant to the Purchase Order. Where applicable, the Purchase Order shall indicate separately the safety costs. If applicable, the price for the Activities shall be DDP Buyer's premises, including all transportation costs, unless otherwise specifically agreed in writing. For the duration of the Purchase Order, no increase in the price may be made (whether on account of foreign exchange fluctuations, currency regulations, changes in duties or taxes, increase in the cost of raw materials, labor, energy, transport or otherwise), without the prior consent of Buyer in writing.
3.5 Travel Expenses. Unless otherwise stated in the Purchase Order, the fees are inclusive of all travel expenses, and subsistence and other incidental expenses incurred by Supplier, its personnel and its subcontractors in respect of the provision of the Activities.
3.6 Withholding and deduction/offset right. The Buyer is entitled to suspend any payment to Supplier in case of (i) breach or suspected breach of the Supplier’s obligations also with reference to Purchase Order other than the one whose payment is suspended and/or (ii) claim of third party including claim to Buyer from Supplier’s employees or from its subcontractors or sub-suppliers and/or their employees. In this respect, the Buyer is entitled to ask to Buyer to deliver proper written evidence of payment of the any amounts due to such parties and of the connected tax, social contributions and any other due amount in relation of which there is the possibility of a joint and severally liability of the Supplier pursuant to any applicable laws and to suspend any payments up to the delivery of such evidence. Furthermore, Buyer is entitled to deduct from and offset against any payments due to the Supplier any amount due by the latter also under any other Purchase Order (also if executed between the same Parties and/or any of their respective Affiliates) as, e.g., reimbursements, penalties, liquidated damages, damages or amount paid forcibly or spontaneously by the Buyer pursuant to apparently lawfully request of third party with particular reference to amounts due to Supplier’s employees or from its subcontractors or sub- suppliers and/or their employees and connected tax, social contributions and any other due related amount.
3.7 Payment and waiver. Full or partial payments shall never imply a waiver by the Buyer of any right it may have under these Terms and Conditions or by law.
4. TERMS AND TIME OF DELIVERY
4.1 Activities Time Schedule. Seller shall deliver the Assets and/or the Service at the delivery date (the “Delivery Date”) indicated in the relevant Purchase Order. If the Purchase Order does not set forth a delivery schedule or milestones for the performance of the Activities, then Supplier shall perform such Services with due diligence under the circumstances. The parties agree that time is of the essence for Supplier’s performance hereunder and the Supplier waives hereby to any right provided for any applicable laws to suspend or delay delivery. Supplier shall promptly notify Buyer of any event that may affect Supplier's ability to meet a Delivery Date or any other milestones or deadlines set forth in the Purchase Order or otherwise agreed with Buyer, together with the cause of such delay and the actions being taken by Supplier to overcome or mitigate the delay. However, such notice shall not relieve Supplier from any responsibility or liability arising from any failure to meet such deadlines.
4.2 Acceptance of Assets and Services. Buyer will not be obliged to take delivery of Assets or accept Services earlier than Delivery Date. Supplier shall deliver Assets ordered by Buyer strictly in accordance with the relevant delivery schedule and the Buyer will have the right to reject delivery in case of partial delivery. Delivery shall not be deemed to have taken place, if Buyer at receipt rejects the consignment fully or partly due to damage on the Assets or the packaging of the Assets, delivery not strictly in accordance with the relevant delivery schedule or any other right to reject the Buyer has under the Purchase Order.
4.3 Postponement of a Delivery Date. Buyer has the right to postpone Delivery Date at its option provided date the postponement date is notified in writing to Supplier before shipment.
4.4 Place of Delivery. Unless otherwise indicated in the Purchase Order, the Assets and/or the Services shall be delivered DDP (Delivered Duty Paid according to Incoterms 2010) at the delivery locations specified by the Buyer in his Purchase and the Supplier shall bear all risks of loss of or damage to the Assets until the Assets have been placed at the Buyer's disposal at the above mentioned place of delivery. The delivery of the Assets shall be considered complete only after assembly, installation, commissioning and positive test and trial of the Assets which the Supplier shall perform at its own care, cost, risk and liability and without interference with or hindrance to the ordinary activity of the Buyer.
4.5 Transfer of Title. The Supplier shall transfer the full and sole ownership on the Assets or, as the case may be, the deliverables related to the Services upon delivery at place and Date of Delivery, Assets and deliverable shall be free from any liens or encumbrances and/or third party’s right.
4.6 Modalities of Delivery and packaging. Delivery of the Assets shall take place in clean, hygienic and physically sound conditions according to the terms agreed between the Supplier and the Buyer. The Assets shall be packed and marked in accordance with the Buyer's instructions and in any case they will be packed as to have the necessary protection to prevent damage or losses during the transportation.
4.7 Failure to meet the Delivery Date. In the event of delay, Buyer may request Supplier to deliver the Assets to the agreed place of destination via the fastest means of transport. If such request is reasonable based on the potential implication on Buyer, Supplier shall meet this request. Any additional delivery charges in excess of those that would apply for the usual means of delivery shall be borne by Supplier.
4.8 Liquidated damages. If Supplier does not deliver Assets or Services timely, Buyer is entitled to liquidated damages as from the date the Assets or Services should have been delivered according to paragraph 4.1. above. The liquidated damages shall amount to two (2) percent of the total value of the concerned Purchase Orders per commenced week up to a maximum amount of liquidated damages of ten (10) percent. Partial Delivery shall not exempt Supplier from liability pursuant to this provision. The rights for Buyer under this clause 4.8 do not exclude Buyer rights to the further damages or to the other remedies available in accordance with the applicable law or the right to terminate the Purchase Order totally or in part if the delay is to be considered as a fundamental breach of contract.
5. CONFIDENTIALITY AND DATA HANDLING.
5.1 Confidentiality. Buyer and the Supplier agree that during the period of their commercial relationship as well as afterwards, any technical (including but not limited to concepts, algorithms, software, notes, pictures, images, text, drawings, designs - complete and incomplete -, prototypes and models to which they gain access as a result of the Purchase Order), commercial or other information and/or knowledge concerning the parties and/or activities of the Buyer and the Supplier, which has come into the other party’s possession, whether received directly, in writing, orally or via receipt of product samples or parts thereof, or acquired during visits, etc., shall be handled with strict confidentiality by the parties.
5.2 Customer Information. Customer Information shall be considered confidential information of Buyer and all right, title and interest in such Customer Information is owned by Buyer. Customer Information may be used only as necessary to perform the Activities in accordance with these Terms and Conditions and with the Purchase Order. Upon request from Buyer, Supplier shall provide Buyer with any and all Customer Information in Supplier’s possession.
5.3 Privacy and Data Security. Unless expressly set out in a Purchase Order, Supplier does not have any right to access Buyer networks or access or use any personal data or Buyer sensitive business information under the Purchase Order in the course of providing the Activities, which data/information is confidential information of Buyer. In the event that Supplier gains access to any of the foregoing data/information, Supplier shall not review, use, process, disclose or otherwise handle the data/information and such review, use, processing, disclosure or handling shall constitute a material breach of these Terms and Conditions. To the extent applicable for the activities contemplated under the Purchase Order, Supplier shall comply with all applicable privacy and security laws to which it is subject, and shall not, by act or omission, place Buyer in violation of any applicable privacy or security law.
5.4 Non-disclosure agreement. Should the Parties have entered a non-disclosure agreement (hereinafter the “NDA”), the terms of such agreement are hereby incorporated into these Terms and Conditions. The parties agree that in the event that there is a conflict between the terms of these Terms and Conditions and the NDA relating to Supplier’s confidentiality obligations, the terms of the NDA shall prevail.
6. INTELLECTUAL PROPERTY RIGHTS.
6.1 Ownership. Supplier assigns to Buyer with full title guarantee and (unless agreed otherwise in the Purchase Order) free from all third party rights, the Intellectual Property Rights and all other rights used in the performance of the Activities or incorporated in the Assets or in the deliverables connected with the Services, all of which such material is Buyer Confidential Information. All right, title and interest in and to any specifications, designs or any other information supplied by Buyer to Supplier, and any modifications thereto, whether made by Buyer or by Supplier, shall remain the property of Buyer. Supplier shall retain ownership of Supplier Retained Material and Buyer shall not have any ownership and proprietary right and or any other rights on any Supplier Retained Material used by the Supplier in performing the Activities which will remain sole property of the Supplier or, as the case may be, of the third parties which have assigned or licensed them to the Supplier. Supplier grants to Buyer a nonexclusive, royalty free, perpetual, irrevocable, world-wide license to use and copy Supplier Retained Material if and to the extent necessary to use the Assets or deliverables connected with the Services for Buyer’s business purposes.
6.2 Further Assurances. At Supplier’s expense, Supplier shall execute and / or cause a relevant third party to execute all documents and take all actions necessary or reasonably requested by Buyer to give full effect to Section 6.1 above.
6.3 Third Party Materials. Supplier shall not disclose to Buyer or use in its work any trade secrets or confidential information of a third party which Supplier is not lawfully entitled to disclose or use in such manner. Supplier shall not use any Third Party Materials in its performance under the Purchase Order unless Supplier has the full right and authority to do so without violating any rights of any third party.
7. WARRANTIES AND REPRESENTATIONS.
7.1 Inspection at delivery. Buyer has no obligation to inspect the Assets at the delivery. Notwithstanding the provision of the article 1495 of the Italian law and /or any similar law of the place of incorporation of the Buyer, Buyer shall have the right to notify Supplier within any period of time to be reasonably able to detect it, that any Assets or Services do not meet the agreed specification, or otherwise do not comply with the agreed terms and conditions. Defective Assets and not in compliance Services shall upon Buyer’s request immediately replaced or resupplied by Supplier at Supplier’s cost and expense without prejudice to any other remedy of Buyer under these Terms and Conditions or by law. All storage and other costs related to the Defective Assets shall be for the account of the Supplier.
7.2 Warranty. In addition to any warranty obligations provided for in the applicable laws, the Supplier represents and warrants to Buyer as follows:
7.2.1 Services Warranty. The Services shall be (a) of high quality and shall meet the Requirements required by the Buyer; (b) shall be performed in a timely manner and with professional diligence, care and skill and (c) shall not infringe any right, including any intellectual property right of any third party. If Supplier is in breach of any of the foregoing warranties, Supplier shall promptly re- perform the Services as necessary at no charge to Buyer. If Supplier is unable to re-perform the Services within thirty (30) days of being notified by Buyer of the specific issue, then Buyer shall at its sole option be entitled to a full and prompt refund in respect of such Services. Notwithstanding the provision of the article 1667 of the Italian law and /or any similar law of the place of incorporation of the Buyer, Buyer shall have the right to notify Supplier within any period of time to be reasonably able to detect it, that any Services do not meet the agreed specification, or otherwise do not comply with the agreed terms and conditions
7.2.2 Assets Warranty. The Assets are free from any kind of defects and meet the Requirements and quality demands pursuant to the Purchase Order and the Technical Documentation for thirty-six (36) months calculated from the date of delivery. Positive final test and trial shall not exonerate the Supplier for any liability for hidden defects and/or the capability of the Assets to meet the Requirements for the whole warranty period of for the other period If case of Defective Assets or in case of lack of full positive results of the final acceptance trial and tests, Buyer shall have the right, at its exclusive choice, to return to Supplier the Defective Assets at Supplier’s expense and, in such case and without prejudice to clause 7.2.3 below, to have reimbursed the full paid amount or to have the Defective Assets or parts hereof timely replaced by the Supplier. In any case, a new Warranty Period applies as from when Supplier has remedied the warranty breach.
7.2.3 Common provision. In case of breach of the warranties provided for in paragraphs 7.2.1 and 7.2.2. above, Supplier shall defend, indemnify and hold harmless, and keep indemnified and held harmless Buyer from and against any and all costs (including reasonable legal costs), claims and direct or indirect damage and losses (including loss of profit, loss of business, depletion of goodwill) the latter suffers, incurs or becomes liable for as a result of delivering Defective Assets or supply Services in breach of clause 7.2.1 and 7.2.2 above.
7.3 General Compliance. Supplier represents and warrants, that the Assets and the Services, irrespective of the Supplier’s place of manufacturing and/or delivery, comply with and shall ensure that all Sub-contractors comply with all national or international laws, rules, regulations, orders, conventions, or ordinances in force in the European Union as well as in Supplier’s and Buyer’s countries and their delivery locations at the time of delivery.
7.4 Specific Compliance and public health. The Assets and the Services must comply with the specific requirements indicated in the Purchase Orders. The Supplier shall ensure that the Assets do not represent and have not been exposed to any microbiological, foreign body or chemical hazards. Documentation evidencing the compliance with all necessary information of quality, environmental, health and safety effects of the Assets and the management systems of the said effects implemented by the Supplier must be made available by the Supplier on request.
7.5 Product Recall. In the event of a decision or recommendation by a competent authority, governmental entity, a court, or a similar public authority to recall products where the Assets or Services are deemed to be the root cause therefor, such recall shall be promptly implemented, directed and administered by the Buyer in a manner which is appropriate and reasonable under the circumstances and in conformity with accepted trade practices. In case of a product recall situation, Buyer is entitled to have reimbursement and be held harmless by the Supplier for any and all costs, losses and expenses incurred by the Buyer, its Affiliates or its customers.
7.6 Survival/Waiver of Warranties. All the foregoing warranties shall not be deemed waived by reason of Buyer's payment of the full Price of any instalments or part of it for the Services or the Assets.
8. LIMITATION OF LIABILITY.
8.1 Nothing in these Terms and Conditions shall be deemed to limit or exclude the Supplier’s liability toward the Buyer: (a) in respect of death or personal injury resulting from its negligence; (b) in respect of fraud or fraudulent misrepresentation; or (c) otherwise to the extent that such limitation or exclusion is not permitted by law.
8.2 It is hereby understood that the Supplier and its Affiliates shall be liable towards Buyer or its Affiliates for any direct, indirect, special or consequential loss or damage of any nature arising out of or related to these Terms and Conditions and to the Purchase Order.
9. INDEMNITY.
9.1 Indemnity. Supplier agrees to indemnify and hold the Indemnified Parties harmless from and against any and all third party claims and any damages, losses, (including loss of profit, loss of business, depletion of goodwill), expenses, liabilities and costs, of any kind (whether direct or indirect) incurred in connection with a breach by Supplier of these Terms and Conditions and Purchase Order, arising out of or relating to: (a) supply of Defective Assets or not in compliance Services; (b) bodily injury or death to any person caused by Supplier or anyone acting on behalf of Supplier; (c) loss, disappearance, or damage to property of any person caused by Supplier or anyone acting on behalf of Supplier; (d) product liability, (e) health, safety and environmental liability, (f) obligation imposed by applicable law (g) any breach or alleged breach of Section 5, or (h) any breach or alleged breach of any rights (including intellectual and industrial property right) of a third party.
9.2 Procedure. Buyer shall provide Supplier reasonably prompt written notice of any such third-party claims and provide Supplier with reasonable and necessary information and assistance in connection with the same. Supplier shall not have any right, without Buyer’s written consent, to make any settlement which arises from or is part of any criminal proceeding or which contains any admission or acknowledgment of liability or wrongdoing by Buyer or its Affiliates or which requires Buyer or its Affiliates to take or to not take any material action.
9.3 Remedy. If Supplier becomes aware that the Assets or Services are or are threatened to become subject to any injunction, or are determined to be infringing of any rights, Supplier shall notify Buyer and immediately, at Supplier’s expense: (a) procure for Buyer the right to continue use of the interested Assets or Services (or any portion thereof) as contemplated under these Terms and Conditions or (b) replace or modify such Assets or the deliverables related to a Service (or any portion thereof) such that they are non-infringing, provided that the replacement or modification is equivalent in function and meets the requirements and specifications of these Terms and Conditions and the Purchase Order to Buyer’s satisfaction. If (a) or (b) are not available to Supplier, in addition to any damages or expenses reimbursed, Buyer shall have the right to terminate the Purchase Order for material breach and Supplier shall refund all amounts paid by Buyer under the Purchase Order (and any other Purchase Order where Buyer’s use of Assets is negatively impacted as a result of the above).
10. INSURANCE.
10.1 Insurance Coverage. The Supplier shall obtain and keep commercial general liability insurance (including contractual liability) in effect during the contractual relationship as well as the other liability insurances indicated in the Purchase Order with the limits of liability not less than those specified therein. The Supplier shall obtain the insurance at its own expense from carriers acceptable to the Buyer. If requested by the Buyer, the Supplier shall name the Buyer, including its affiliates and their respective officers, directors, employees, and agents as additional insured under its general liability insurance. Compliance with this insurance requirement shall in no way limit the Supplier's obligations or liabilities under these Terms and Conditions. The Supplier shall provide the Buyer with certificates of insurance evidencing the above-required coverage at the Buyer's request.
11. ANTI- BRIBERY AND CORRUPTION.
11.1 Each party represents to the other that neither it nor any of its representatives have been induced to enter into the Purchase Order and into these Terms and Conditions or to cause the Purchase Order and/or these Terms and Conditions to be entered into, as a result of any illegitimate gift, consideration or other benefit paid by a person to any other person.
12. PERSONNEL.
12.1 Buyer and Supplier do not intend that any Personnel shall become employees of Buyer, its Affiliates or any replacement supplier: (i) upon the commencement of any Activities under the Purchase Order; (ii) on termination or expiry of the Purchase Order; or (iii) on the provision of all or any part of the Activities by Buyer, its Affiliates or a replacement supplier.
13. GOVERNING LAW AND ARBITRATION
13.1 Governing Law. These Terms and Conditions shall be governed by and construed in accordance with laws of the place of incorporation of the Buyer.
13.2 Arbitration. Any dispute arising out of or related to these Terms and Conditions shall be exclusively settled by arbitration under the Rules of the Milan Chamber of Arbitration, by three (3) arbitrators appointed in accordance with said Rules, as in force at the time of the dispute. The arbitration proceedings shall be held in the capital town of the Country where the registered office of the Buyer is located. Should the Buyer and the Supplier have their registered offices in Italy, the language of the arbitration shall be Italian, otherwise the language shall be English. By way of derogation of the above, it is however agreed that the Buyer shall have the exclusive right to call and involve the Supplier in any legal action brought against the Buyer by any third party.
14. GENERAL.
14.1 Notices. All notices in connection with these Terms and Conditions shall be in writing in English and shall be delivered in writing by hand, pre-paid first-class post or recognised commercial courier or by electronic mail to the addresses indicated in the relavant Purchase Order.
14.2 Relationship of Parties; Supplier is an independent contractor for Buyer, and nothing in these Terms and Conditions or in the Purchase Order is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Supplier acknowledges that it is not authorised to make any contract, agreement or warranty on behalf of Buyer. Supplier is responsible for all compensation, taxes, withholding, national insurance contributions (or other national equivalent), insurance, and other benefits for (and for any other obligation or liability to) and is solely responsible and liable for the actions and the claims of any personnel performing under these Terms and Conditions and under the Purchase Order (being the Buyer’s personnel or any of its sub-contractors’).
14.3 Subcontractors. Supplier may subcontract its performance obligations under the Purchase Order with Buyer’s advance written consent, provided that each such subcontractor first signs a non- disclosure or other agreement with Buyer which ensures the sub-contractor shall protect the latter’s Confidential Information. Supplier shall in any event retain sole responsibility and liability to Buyer for performance under these Terms and Conditions and the Purchase Order and shall be responsible for any and all acts or failures to act of the sub-contractor as if they were Supplier’s acts or failures to act. Supplier is sole responsible for all compensation, taxes, withholding or any other payments due to subcontractors or in connection with the relationship with subcontractors and will keep the Buyer harmless and indemnify it from any liability, action or enforcement procedure in connection with such compensation, taxes, withholding or any other payments.
14.4 No Publicity. Supplier shall not without Buyer's prior written approval, (a) issue or make, or permit to be issued or made, any public communication of any kind regarding these Terms and Conditions or the relationship of the parties, or (b) use the name, trademarks, get up, logo or other brand identifiers of Buyer, including in any Supplier customer list. Requests for approval should be made to Supplier’s main Buyer contact but must be authorised by Buyer’s press team. All authorised use of Buyer branding must follow the brand guidelines provided by Buyer.
14.5 No Exclusivity; No Minimums. Unless otherwise specifically provided in the applicable Purchase Order (a) nothing in these Terms and Conditions prevents either Supplier or Buyer from entering into the same or similar relationship with others and (b) nothing herein shall be construed as creating a minimum commitment for business on the part of Buyer to Supplier.
14.6 Export. Supplier shall be responsible for compliance with export laws and any customs obligations in relation to its delivery of any Assets.
14.7 Assignment. Supplier shall not be entitled to assign any rights or obligations under these Terms and Conditions or any Purchase Order without the prior written consent of the Buyer.
14.8 Change of Control. If Supplier experiences a Change of Control, then Supplier shall so inform the Buyer within ten (10) business days of such Change of Control. Buyer may then terminate each Purchase Order entered into with the Supplier by giving three (3) months' written notice thereof. During this notice period following the Change of Control termination notice, Supplier shall, upon Buyer’s request, continue to supply the Assets or perform the Services on the terms set out forth in the Purchase Order.
14.9 Waiver; Severability. No waiver of any term, condition or obligation of these Terms and Conditions shall be valid unless made in writing and signed by the party to which such performance is due. No failure or delay by any party at any time to enforce one or more of the terms of these Terms and Conditions shall (a) constitute waiver of such term (or any subsequent term) or (b) preclude such party from requiring performance by the other party of such term at any later time. In the event any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision shall be enforced to the maximum extent permissible under applicable law, and the other provisions of these Terms and Conditions shall remain in full force and effect. The parties further agree that in the event such provision is an essential part of these Terms and Conditions, they shall begin negotiations for a suitable replacement provision.
14.10 Entire Agreement. Save as expressly stated otherwise herein, these Terms and Conditions contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all oral understandings, representations, prior discussions and preliminary and past agreements.
14.11 Variation. These Terms and Conditions may be subject to any further amendment or revision made by the Buyer which will be duly notified to the Supplier.
The Supplier expressly and specifically accepts the following terms and conditions: 2.2. (Acceptance of Purchase Orders); 2.3 (Lack of Buyer’s joint liability); 3.2 (Invoices/Manner of Payment); 3.6 (Withholding and deduction/offset right); 4.1 (Activities Time Schedule); 4.2 (Acceptance of Assets and Services); 4.3 (Postponement of a Delivery Date); 7.1 (Inspection at delivery); 9.2 (Procedure); 13.2 (Arbitration); 14.3 (Subcontractors); 14.7 (Assignment); 14.8 (Change of Control).
Seda Group - Terms & Conditions of Purchasing - Services & Assets