Terms & Conditions of Supply
These Terms & Conditions of Supply (hereinafter “Terms and Conditions”) shall be considered as the commonly agreed terms and conditions applicable to any current and future supply and/or sale of Products by Seda International Packaging Group S.p.A., a company existing under the laws of Italy, and any of its Affiliates (hereinafter “Supplier”), 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, offer, confirmation, contract proposal, contract acceptance) which this set of terms and conditions is attached to or is referred in (hereinafter the “Buyer”). These Terms and Conditions will automatically apply to any supply of Products from the Supplier to the Buyer and shall prevail to any other different or inconsistent terms and conditions which are or will be submitted in future by the Buyer, unless specifically agreed otherwise in writing between the Supplier and the Buyer.
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:
“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;
“Blanket Order” means a general Purchase Order which states a minimum and a maximum number of Products to be supplied over a period of time in multiple deliveries on the basis of specific Purchase Order, without expressly indicating the exact quantity or the delivery dates; “Change Order Request” means a written request by Buyer to Supplier;
“Closed Order” means a Purchase Order where the Products’ quantities, price, conditions and delivery dates are expressly indicated;
“Intellectual Property Rights” means intellectual property rights and all other rights related to the Products;
“Items” means the Buyer’s goods which will be placed into the Products and/or which will be in any manner used together with or in connection with the Products;
“Product or Products” means the goods (e.g. raw material, components, semi-finished goods or finished products) supplied by Supplier to Buyer pursuant to the Purchase Order;
“Purchase Order” means any Buyer order issued by Buyer to Supplier as and insofar accepted by the latter pursuant to article 2.3 hereinbelow or, as the case may be, any supply agreement entered into by and between Buyer and the Supplier;
“Sample” means any sample of the Products;
“Specifications” means the features, dimensions, capacity, properties and technical, safety and health standards that Products comply with and which shall be set out in the Technical Documentation, if any, pertinent to each Products of the Supplier, as it may be amended from time to time;
“Technical Documentation” means the General Specifications, the Technical Drawings, the Product Data or Reference Sheet (or, as the case may be, Technical Data Sheet), the AQL as well as any other documents (including notes and indications in the Purchase Order confirmation) issued by the Supplier which contains Specifications, drawings, composition and list of raw materials, warnings, use and storage instructions or indications and acceptable quality levels (AQL) standards referred to or in connection with Products supplied by Supplier to Buyer. The Technical Documentation is binding on all Parties entering on a sale or supply contract with the Supplier and is an integrating part of these Terms and Conditions. In case of conflict between a provision of these Terms and Conditions and a provision contained in the Technical Documentation, the latter shall prevail.
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 stated otherwise.
2. PURCHASE ORDER
2.1 Supplies. Supplier shall supply and sell the Products to the Buyer pursuant to its acceptance of a Closed Order or delivery request issued in the framework of Blanket Order and in accordance with the descriptions, specifications, fees and delivery schedule set forth in the Purchase Order, in the applicable Technical Documentation and its attachments, if any, or as indicated in these Terms and Conditions.
2.2 Blanket Orders. In case of execution of Blanket Orders, the Buyer shall send to the Suppliers 12 months (or, if the Blanket Order is issued for a shorter period, the duration of such period) rolling forecast which shall indicate the quantities of the Products, detailed by the date of possible purchase orders as well as type and size of the concerned Products, which it is expected that will be purchased in the following 12 months. The forecast will be updated each month by sending a new rolling forecast which includes the forecast for the new coming 12 months. It is agreed that the forecast of the purchases in the 2 months subsequent to the sending of each rolling forecast cannot be modified and is binding on the Buyer. The Supplier has no obligation to accept rolling forecast and purchase orders that exceed the maximum quantity indicated in the Blanket Order. Without prejudice to any other Supplier’s right, in case of Buyer’s failure to order and/or to take delivery of the binding quantity of the Products indicated in the last 2 months of the rolling forecast, the Supplier shall invoice the Buyer both the Products’ price and the storage cost (with reference to the not delivered Products after 60 days from the date in which their delivery should have taken place according to the rolling forecast The minimum quantity indicated for each Product in the Blanket Order is binding on the Buyer.
2.3 Purchase Orders. Any Purchase Order or delivery request shall be binding on the Supplier only after Supplier has confirmed it in writing or upon performance of the order (e.g. by delivering the ordered Products). If the period of validity of an offer made by the Supplier has not been explicitly set, its validity is limited to thirty (30) days from the date of the relevant issue. Any Purchase Order issued by the Buyer is binding for the latter and entails the Buyer’s acceptance of these Terms and Condition.
2.4 Earlier Termination of a Blanket or Closed Orders. In case of early termination cancellation or partial reduction of a Purchase Orders, if and insofar as expressly accepted in writing by the Supplier, the Buyer has to pay in full the remaining stocked inventory, including finished goods, work-in-progress and raw materials specifically ordered for the Products.
3. PRICING AND PAYMENT
3.1 Prices. Prices for the Products will be set out in the offer of the Supplier or in the Supplier’s price list valid on the day of delivery of the Purchase Order as indicated in the Supplier’s commercial literature. Prices include standard packaging and standard package for the Products. Prices for the Products shall not be inclusive of any value-added tax and other similar taxes, duties or imposts levied by any governmental agency (including, but not limited to, those at state or municipal levels), income tax or any other assessment levied by any competent authorities. Any such amounts levied, whether withheld at source or otherwise, will be added to the price for the Products and shall be paid by, or for the account of, the Buyer.
3.2 Pricing modification. It is hereby understood and agreed between the parties that the Supplier, upon a prior written notice, shall have the right to increase the price of the Products, both on a regularly basis for whatever reason, as well as at any time should an increase in the production cost born by the Supplier happens, by virtue of foreign exchange fluctuations, currency regulations, increase in the cost of raw materials, labor, energy or transport or any other causes beyond the control of the Supplier.
3.3 Payment terms. Unless specifically agreed otherwise in writing, the Buyer shall pay each relevant invoice sent by the Supplier no later than thirty (30) days after the invoice date by direct bank transfer to the bank account defined by the Supplier. It is hereby understood that the time for payment of the Supplier's invoices shall be of the essence. Upon default of payment at the due date, Supplier shall have the right to interests at the maximum rate provided for in accordance with the applicable local law, without prejudice to the Supplier’s right to claim any further damages.
3.4 Delay or default in payment. In the event of Buyer’s default or delay in payment, the Supplier shall have right to suspend any delivery and the performance of any outstanding purchase orders unless Buyer’s providing of advance payment or proper security and, if no such advance payment is made or security provided within a two-week time period, to cancel any outstanding purchase order, without prejudice to the Supplier’s right to claim any further damages. Moreover, irrespective of the indicated payment term, any invoice shall be immediately payable.
3.5 Offsetting. The Buyer may withhold or offset due payments against their own counter-claims only if and insofar as these are acknowledged and authorised to do so in writing by the Supplier.
4. TERMS AND TIME OF DELIVERY
4.1 Delivery place. Unless otherwise expressly agreed in writing, Supplier shall deliver the Products Ex Works (EXW ICC INCOTERMS 2010) at the manufacturing or storage premises indicated in the Supplier’s acceptance or acknowledgement of the concerned Purchase Order.
4.2 Delivery time. Delivery periods, dates and terms indicated in the relevant Purchase Order are assumed by the Supplier on a best effort basis only, unless otherwise expressly agreed in writing. Should the Supplier discover that the delivery date set out in a Purchase Order cannot be met, the latter shall notify it to the Buyer in writing, stating the relevant cause and the new estimated date of delivery. Supplier may perform partial deliveries and render partial services if such action would not unreasonably and materially affect the Buyer.
With respect to delivery periods and dates which are not expressly defined as fixed in the relevant Purchase Order, the Buyer may - two weeks after expiry of such a delivery period or date - set an adequate grace period for delivery. Supplier may only be deemed to be in default after the expiry of such a grace period. In any case, Supplier shall not be responsible for direct or consequential loss or damage arising from the non-compliance of the latter with the said dates of delivery and any contractual or statutory right of the Buyer to terminate the Purchase Order.
If a shipment is delayed for reasons to be attributed to the Buyer, the risk of accidental deterioration, loss and destruction shall pass to the Buyer on notification of Supplier’s readiness to ship. Any required storage costs after passing of risk shall be borne by the Buyer.
4.3 Shipment and delivery risk. Unless otherwise expressly agreed in writing, shipment and delivery shall always be carried out at the Buyer's risk. Unless otherwise agreed by the parties in writing, all operations involving transport, insurance, customs, maintenance and bringing to the site shall be carried out and be paid by the Buyer at its risk and responsibility. The Buyer shall bear all additional freight costs, packing costs in excess of standard packing and duties.
4.4 Shipment severability. Each delivery shall be considered as a separate transaction and independent sale and the failure of any delivery shall not affect the due performance of the Purchase Order and of the payments as regards to other deliveries.
4.5 Condition precedent to Delivery. Unless otherwise agreed in writing with the Buyer or in case of further Purchase Orders for same Products previously supplied to the Buyer, after the execution of a Purchase Order and before deliveries, the Supplier will deliver to Buyer a Sample manufactured in accordance with the applicable Technical Documentation at Buyer’s cost. The Buyer will approve in writing the Sample not later than two (2) working days as from its delivery it being agreed that such approval cannot be unreasonably and without explanation withheld or delayed. Should the Buyer fail to give its timely written approval to the Sample, the Supplier may delay deliveries and/or terminate the Purchase Order having in any case right to full damages. Delivery terms or dates shall start as from approval of the Sample.
4.6 Reservation of title. DELIVERED PRODUCTS SHALL FULLY REMAIN PROPERTY OF THE SUPPLIER UNTIL THE CONCERNED RECEIVABLES HAVE BEEN FULLY PAID UP, IT BEING HOWEVER AGREED THAT, AT DELIVERY, THE BUYER ASSUMES ANY RISKS AND LIABILITY CONNECTED WITH THE DELIVERED PRODUCTS. THE BUYER SHALL AUTOMATICALLY TRANSFER AND ASSIGN TO SUPPLIER ANY RECEIVABLES RESULTING FROM A RESALE OF ANY PRODUCTS INITIALLY SOLD WITH SUPPLIER’S RETENTION OF TITLE.
5. WARRANTIES AND REPRESENTATIONS
5.1 General Warning. It is expressly understood and agreed by and between the Buyer and the Supplier that, except for what hereunder set out, Buyer shall solely assume and shall hold the Supplier harmless from any liability arising out of or however connected with the processing of the Products at Buyer’s (or third parties’, under Buyer’ instruction) premises (such as, but not limited to, the filling of the Products with the Items managed by the Buyer) as well as their commercialisation and/or distribution in any country.
5.2 Warranty. The Supplier exclusively warrants and guarantees to the Buyer that the delivered Products are free from relevant manufacturing defects which (i) make not possible the normal intended specific use of the Products and (ii) exceed the applicable AQL as indicated in the Technical Documentation and, and (iii) are beyond the customary market tolerable level of deviance and variations in respect of the pertinent specifications, descriptions and Sample, if any. The warranty has a limited duration of twelve months as from the date of delivery of the concerned Products.
5.3 Liability exclusions. Supplier cannot be held liable (i) for defects resulting from (if any) materials furnished by the Buyer or arising out or connected with the Items, (ii) for damages or accidents attributable to the Buyer or to a third party, (iii) in case of abnormal or atypical use or use that is inconsistent with the Product’s intended use, industry practice, or Supplier’s advice or recommendations as well as warnings and indication for use, machinability and storage, as well as (iv) in case of change of the characteristics of the Items and/or the conditions of use of the Products by the Buyer which have not been disclosed by the Buyer.
5.4 Inspection at Delivery. The Buyer shall, at its own expenses and under its sole responsibility, verify or have others verify immediately at delivery the Products’ conformity (also with reference to quality and quantity terms) to the Purchase Order and the existence, if any, of visible defects.
5.5 Term of notice. The Buyer must give full and detailed notice of any discovered defects within a reasonable time and in any case not later than five (5) days, under penalty of forfeiture, from the date in which the defect was discovered or was in good faith detectable providing any information (including pictures) as may be reasonably required by the Supplier. If so authorised or requested in writing by the Supplier, defective Products shall be returned to the Supplier for examination in their original or equivalent packaging. In no other cases, return will be allowed. All Products returned shall be accompanied by a report issued by the Buyer and the Parties will cooperate in good faith in order to identify the root cause of the issue and the future possible remedy.
5.6 Supplier’s warranty obligation. The Supplier shall remedy defects if the warranty claim is validly made within the warranty period it being its sole obligation to replace any actual defective Products or, upon its exclusive choice, to reimburse to the Buyer the paid price for the defective Products. Any replacement shall be made at Supplier’s sole option and cost and with reasonable expedience. All Products returned shall, at Supplier’s expense, be delivered to designated address using the transportation method specified by the Supplier.
5.7 Exclusive remedy and liability. It is hereby agreed and understood that the remedies for delivery of defective Products set out herein shall be the full and exclusive remedy available to the Buyer. All other claims against the Supplier and any further liability based on delivery of faulty or defective Products is excluded. Unless otherwise expressly agreed in writing between the parties, no warranty is given and no representation is made by Supplier whether express or implied, as to the usefulness, sufficiency, merchantability or fitness for any purpose whatsoever of the delivered Products.
6. COMPLIANCE AND SPECIFICATIONS
6.1 Compliance. Unless otherwise expressly agreed in writing between the Parties, the Products will be in compliance with technical, safety, health, environmental and packaging rules and any other laws, requirements, standards and technical rules if any, in force in the countries where is located the registered office of the Supplier or expressly indicated in the Technical Documentation. Except for any lack of compliance or divergences in respect of such requirements, the Supplier will not be liable and the Buyer will indemnify and hold the Supplier harmless for the compliance of the Products as well their use, commercialisation and distribution with any relevant applicable law, standards and regulations (including those concerning safety, health, environmental, packaging, import and export, including embargo, matters) legislation and the Buyer will take care at its exclusive cost and risk for the obtaining of any certification, licence, permit and authorisation of any kind required by any competent authority and/o relevant applicable law, standards and regulations for the use, commercialisation, import and export of the Products.
6.2 Products Specifications. Specifications of Supplier’s Products, such as, e.g., pictures, colours, drawings, data about weight, measures, performance and capacity contained in offers and brochures are to be considered only for indication purpose. Such specifications and data shall in no way constitute a quality warranty but merely a description or labelling of the Products. Unless limits for variations have expressly been agreed in the order confirmation, such variations shall be admissible in so far as they are customary within the trade.
6.3 Warnings and indications. The Buyer shall make sure at its own expenses and care that the Supplier’s advice, recommendations, warnings and indication for use, machinability and storage concerning the Products are conveyed to and made known by its own customers and by final consumers. The Buyer shall indemnify and hold the Supplier harmless from any claim for damages brought by Buyer’s customers, by final consumer or, in general, third parties in case of failure to proper transfer of such Supplier’s advice, recommendations, warnings and indication for use, machinability and storage. Moreover, the Buyer will assume the obligation, holding the Supplier harmless for any liability in such a respect, to affix on the products any further recommendations, warnings and indication for use, machinability and storage, which can be deemed appropriate under a precautionary principle for the country in which the further customers and users are located.
7. LIMITATION OF LIABILITY
7.1 Liability. 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. Without prejudice for the foregoing, Supplier’s liability shall be limited to the direct, certain material and foreseeable damages caused to the Buyer that result from gross negligence attributable to the Supplier in performing its obligation under this Terms and Conditions and under the relevant Purchase Order.
7.2 Limitation of Liability. In no event Supplier shall be liable for indirect, consequential special, punitive or exemplary damages, even if it has been advised of the possibility of such damages, as well as and including but not limited to third party claims and/or loss due to operational disturbances and/or loss of profit and/or loss of business and/or depletion of goodwill (whether direct or indirect). The Supplier has no liability for the result of Buyer’s use of the Products in conjunction with other products not provided by the former. In any case, the maximum amount of damages recoverable in any event, whether arising from breach of contract or from statutes, including negligence, shall be within the limits acknowledged by the Supplier’s insurance coverage.
7.3 Product recall. In the event of a binding decision by a competent authority, governmental entity, a court, or a similar public authority to recall products in which the Products forms part and where the Products are jointly deemed and acknowledged by the Parties to be the root cause for such recall decision therefore, 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 as well as with the best efforts to minimizing costs and liabilities. To the extent that the Supplier has caused such issue and has been proved to be liable, the Buyer shall be reimbursed for direct, relevant and proven losses within and to the extent of the Supplier’s limitation of liability as indicated in this paragraph 7.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Any pre-existing intellectual property rights and know-how already belonging to each Party and used by it in the performance of any Purchase Order shall remain property of such Party. Supplier shall have the full right to use and exploit in any manner in its activity any knowledge, know-how, method, process, concept or idea developed by it during the performance of any Purchase Order. Without prejudice for the foregoing, the Supplier shall retain the ownership of all intellectual property on or however related to the Products (and of any relevant idea, concept, drawings, designs, pictures, images, text, audio-visual works, inventions, data models, draft, technical specifications, tooling, etc., as well as any change, modifications and improvements to them made during and or in connection with) in developing, manufacturing and supplying the Products. Any moulds, lithographic plates, and any other tools for the development as well as subsequent manufacture and delivery, if any, of the Products will remain sole property of the Supplier.
8.2 Buyer represents and warrants that it has full right on any artwork, design, model, pictures, drawing, logo, wording, sign, code (including Q-code), trademark (including form trademark), tradename, brand and similar items which require to be reproduced on the Products and/or to which the Products must comply with. Therefore, in case of breach of such warranty, the Buyer shall defend, indemnify and hold the Supplier harmless from any claim of third parties claiming any intellectual or industrial rights for features of the Products which were required or connected with requirements of the Buyer.
9. CONFIDENTIALITY AND DATA HANDLING
9.1 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.
9.2 Public Domain. The confidentiality provisions of this clause shall not apply to the use or disclosure of the information which: (a) are or become publicly available, other than as a direct or indirect result of any breach of the confidentiality commitment pursuant this Section 6; (b) were in the lawful possession to the utilizing party prior to their disclosure (as can be demonstrated by the written records or other reasonable evidence); (c) was lawfully disclosed to the utilizing party by a third party not in breach of any confidentiality obligation with respect to such information; (d) are required to be disclosed by law or mandatory demand of a competent regulatory or law enforcement agency. Moreover, the Supplier is entitled to inform potential clients and investors about the supply relationship with the Buyer in general terms.
10. FORCE MAJEURE AND HARDSHIP
10.1 Neither party shall be held liable for any delay in execution or for non-execution of all or part of its obligation if the party is prevented or delayed from performing its obligations for reason of force majeure that is when the performance becomes impossible or unduly burdensome because of unforeseeable events beyond its control, such as epidemic/quarantine events (Covid-19, etc.), strikes (including local and factory strikes), boycotts, lock-outs, fires, war (either declared or not), civil war, riots, revolutions, requisitions, embargo, energy black-outs, disruption in transport, delay in delivery of components or raw materials. A party affected by such events shall notify the other Party thereof without undue delay after the circumstance has occurred and shall attempt to do away with the disturbance as soon as possible in order to allow resumption of the performance under the relevant Purchase Order, within the limits of these Terms and Conditions. It is expressly agreed that the parties shall meet in order to agree as to the postponement of Supplier’s obligations, which are affected by the event of force majeure, and to the rescheduling of the delivery periods and dates.
10.2 If, prior to the date of delivery of the Products, the circumstances that existed at the date of conclusion of the Purchase Order should change to such an extent as to make it impossible or unduly burdensome for the Supplier to be reasonably required to fulfill one or more of its obligations under the above mentioned Purchase Order, and if such change could not have been reasonably foreseen by such party, then the parties shall jointly investigate, at the request of the Supplier, whether such hardship can be removed in a manner acceptable to the non-injured party. If no agreement is reached within a reasonable time, the Supplier shall be entitled to terminate the Purchase Order without any liability.
11. GOVERNING LAW AND JURISDICTION
11.1 Governing Law. These Terms and Conditions and any Purchase Orders shall be governed by and construed in accordance with laws of the place of incorporation of the Supplier.
11.2 Jurisdictions. Any dispute or claim arising out of or relating to these Terms and Conditions and any Purchase Orders shall be submitted to the exclusive jurisdiction of the courts at the Supplier's registered seat of business it being however agreed that the Supplier shall have the exclusive right to start any legal action to the courts competent for the Buyer’s registered office as well as those competent for the place of delivery of the Products.
12. GENERAL
12.1 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 relevant Purchase Order.
12.2 No Bribery. 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.
12.3 Assignment. Buyer 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 Supplier. Supplier have the right to subcontract its performance obligations under the Purchase Order by sending a written notice to the Buyer.
12.4 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 constitute waiver of such term or preclude such party from requiring performance by the other party of such term at any later time.
The invalidity or inefficacy of one or more provisions shall not cause the invalidity, inefficacy or termination of this Terms and Conditions as a whole. The Parties shall replace the invalid provisions with provisions having, as far as possible, the same purpose.
12.5 Entire Agreement. Save as expressly stated otherwise herein, these Terms and Conditions and the relevant Purchase Order 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. These Terms and Conditions may be subject to any further amendment or revision made by the Supplier which will be duly notified to the Buyer.
The Buyer expressly and specifically accepts the following terms and conditions: 3.2 (Pricing Modification); 3.4 (Delay or default in payment); 3.5 (Offsetting); 4.2 (Delivery Time); 5.2 (Warranty); 5.5 (Term of notice); 5.6 (Supplier’s warranty obligation); 5.7 (Exclusive remedy and liability); 6 (Compliance and Specifications); 7.1 (Liability); 7.2 (Limitation of Liability); 7.3 (Product recall); 10 (Force Majeure and Hardship); 11 (Governing Law and Jurisdiction).
Seda Group - Terms & Conditions of Supply - 060420