TERMS OF PURCHASE  –  2005-12-02

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1. General provisions

1.1 These Terms of Purchase shall apply to all business relations between IMPERGOM S.r.l. (“Buyer”) and the undersigned company (“Supplier”).

1.2 These Terms of Purchase shall override any terms and conditions of sale of the Supplier including, but not limited to, those mentioned or enclosed by the Supplier in its acknowledgement or acceptance of the purchase order, in its invoices or shipping documents, or posted on the Supplier’s website (if applicable), even if the Buyer does not raise a specific objection.

1.3 Additional or different terms proposed by the Supplier shall be void and of no effect unless accepted in writing by the Buyer.

1.4 The article titles in this Terms of Purchase are for convenience only and have no legal or contractual effect.

2. Purchase orders

2.1 Buyer shall include the items to buy in a written document (purchase order), stating the identification data of the products (part numbers and description), their prices, the terms of delivery and payment applicable to the order and the requested delivery time (delivery time being the date of consignment of the goods to Buyer’s warehouse). The purchase order shall be sent by email or fax, as requested by Supplier.

2.2 Supplier shall acknowledge the purchase order within three working days, in writing, by fax or email, stating the delivery time of each item.

2.3 In the lack of any acknowledgement within the period set forth in par. 2.2, any purchase order received by Supplier will be deemed to be valid and effective according to the terms and conditions mentioned therein.

2.4 Even if Supplier does not so acknowledge the Purchase order, Supplier’s commencement of performance of its obligations pursuant to the Purchase order shall be deemed to constitute an acceptance by Supplier of the Purchase order and an agreement to comply with the applicable terms and conditions.

2.5 If Supplier believes that there is any error, omission, deficiency, ambiguity, contradiction or conflict within the various parts of the purchase order or between any part and any applicable code, law or regulation, then Supplier shall immediately bring the same to Buyer’s attention and shall not proceed with performance of Supplier’s obligations thereby affected until written clarification from Buyer has been obtained.

2.5 Supplier has a duty to inform Buyer in a timely fashion of any planned or actual change of the price list in force. No price increase shall be permitted after the purchase order is sent to the Supplier, unless agreed in writing by Buyer.

 

3. Supplier’s responsibility

3.1 Supplier shall be fully responsible for the performance  of its obligations pursuant to or under the purchase order including, but not limited to, responsibility for the design, manufacture, production, and delivery of the goods, in compliance with all terms, conditions, specifications, drawings (if applicable), samples (if applicable) and other requirements of Buyer as set out in the purchase order and/or in the relevant commercial correspondence received by Buyer, in accordance with the codes, laws and regulations of any applicable jurisdiction.

3.2 Supplier shall choose its suppliers and/or subcontractors among companies of proved experience and technical capability. Supplier shall remain solely and fully responsible for the acts, errors and omissions of its subcontractors or suppliers of any tier.

 

3.3 Supplier shall deliver the goods at its own risk, until receipt at Buyer’s warehouse, irrespective of the INCOTERM quoted on the purchase order.

4. Delivery time

 

4.1 Supplier acknowledges that delivery time is a critical element for the performance of its obligations under the purchase order.

4.2 The delivery time stated in Supplier’s acknowledgement or acceptance of the purchase order, or that mentioned on the same purchase order in case par. 2.3 applies, shall be binding.

4.3 In any case of delay, even actual or foreseeable, Supplier shall immediately inform Buyer of the reasons and the estimated duration and shall take all the steps to shorten the delay.

4.4 If Supplier fails to deliver the goods, after the expiry of an additional reasonable period negotiated with Buyer and by the same approved in writing, Buyer, without prejudice to any other rights as per par. 5.4 b) or at law, may:

a) terminate the purchase order; and/or

b) buy the non delivered goods from other companies and charge Supplier the higher price paid to procure the goods, if any.

5. Quality of the goods and warranty

5.1 Supplier warrants that the goods provided under this Terms of Purchase, whether manufactured or otherwise provided by Supplier, shall:

a) be free from any right or claim of a third party;

b) strictly be in conformity with the quantity, descriptions, specifications, drawings (if applicable), samples (if applicable) and any other requirements set out in the purchase order or provided by Buyer;

c) always match state-of-the-art technical and manufacturing standards, particularly for all the aspects not otherwise specifically regulated;

d) be of new and sound materials and workmanship;

e) be of merchantable quality and fit for the purposes and applications intended;

f) conform with all applicable codes, laws or regulations of any applicable jurisdiction;

g) be ‘safe’ within the meaning of European directive 2001/95/EC on general product safety;

h) be free from defects, even hidden or latent, in materials, performance, operation and workmanship for a period of 2 (two) years from the date of receipt to Buyer’s warehouse.

5.2 SUPPLIER SPECIFICALLY ACKNOWLEDGES THAT IT SHALL INDEMNIFY BUYER FOR ANY COST INCURRED TO REMEDY THE LACK OF CONFORMITY OF THE GOODS, IRRESPECTIVE OF THE TIME LIMITATION SET FORTH BY ARTICLE 5.1 H) TO THE WARRANTY PERIOD, IF:

A)    BUYER IS SUBJECT TO DEMAND OR CLAIM BY SUBJECTS ACTING ACCORDING TO CONSUMER PROTECTION LAW OR REGULATIONS, OR SUBJECTS EXERCISING THEIR RIGHT OF REDRESS WITHIN THE SCHEME OF CONSUMER PROTECTION LAW OR REGULATIONS;

B)                THE LACK OF CONFORMITY OF THE GOODS MAY AFFECT THE SAFETY OF THE VEHICLES ON WHICH THE NON-CONFORMING PARTS ARE APPLIED.

5.3 In addition and further explanation to the warranties as per par 5.1, supplier acknowledges that Buyer shall consider the goods not in conformity in case of any defect including, but not limited to:

a) tears, cracks, burrs on rubber parts;

b) de-bonding of rubber from metal parts;

c) blisters, flaking on metal areas;

d) signs of rust on any area of the part, even if not directly visible;

e) bubbles, inclusions or material lacks;

f) any defect seriously reducing the nice appearance of the goods.

5.4 SUPPLIER SHALL RELEASE, INDEMNIFY AND HOLD BUYER HARMLESS FROM AND AGAINST ANY AND ALL COSTS, INCLUDING LEGAL FEES AND COURT COSTS, EXPENSES, FINES, PENALTIES, DAMAGES, LIABILITIES, LOSSES ARISING OUT IN CONNECTION WITH:

A) ANY LACK OF CONFORMITY OF THE GOODS WHETHER MANUFACTURED OR OTHERWISE PROVIDED BY SUPPLIER;

B) ANY OTHER BREACH OF SUPPLIER’S OBLIGATIONS UNDER THESE TERMS OF PURCHASE AND THE PURCHASE ORDER.

5.5 SUPPLIER SPECIFICALLY ACKNOWLEDGES THAT THE PROVISIONS SET FORTH IN PAR. 5.4 SHALL APPLY TO THE COSTS INCURRED BY BUYER FOR RECALL CAMPAIGNS OF DEFECTIVE AND/OR DANGEROUS PRODUCTS.

5.6 Supplier undertakes to take out and maintain, with a leading insurance company, a product liability and product recall insurance for a cover amount of 2.000.000 (two millions) Euro.

5.7 Upon request, Supplier shall provide to Buyer in writing, in English language, a data sheet with the main information concerning the goods, its properties and performance, including the applicable tolerances.

Supplier shall also provide any special instructions necessary for the handling, storage and application of the goods, including the relevant information and warnings on any risk  posed by the products or any other information which should be forwarded to the final customers.

6. Prohibited substances

 

6.1 Supplier warrants that the goods manufactured or otherwise provided to Buyer shall be free from any hazardous substances, materials or components prohibited under any applicable jurisdictions. Supplier shall make available the necessary information about the substances contained in the goods sold to Customer under the purchase order.

6.2 In particular, Supplier, its subcontractors and suppliers of any tier shall comply with European directive 2000/53/EC on end-of life vehicles, concerning restrictions on the use of lead, mercury, cadmium or hexavalent chromium.

6.3 Supplier shall not use any substance whose use is not approved or regulated by any codes, laws or regulations of any applicable jurisdiction.

6.4 Supplier shall provide, before the first delivery, the material safety data sheet (MSDS) for any dangerous substance or preparation included in the goods sold to Buyer and shall apply to the goods thereby affected and its packaging any mandatory labels prescribed.

 

7. Packaging

 

7.1 Supplier shall pack the goods according to the specifications set forth in the purchase order and/or in other relevant communications by Buyer.

7.2 In the lack of any specific instruction, Supplier shall use such packaging methods necessary to preserve and protect the goods and avoid any risk to the operators in charge of handling, taking into account the means of transport to be used. In case of overseas transport, Supplier shall pay particular attention to avoid any damage due to saltiness.

7.3 Unless agreed otherwise, Supplier shall stick a label on each packing unit (cardboard box, plastic bag, etc.) stating Buyer’s part number and the quantity of pieces included therein.

8. Marking

 

8.1 Supplier shall strictly follow the marking instructions set forth in the purchase order and/or in other relevant communications.

8.2 Supplier acknowledges that Buyer shall be entitled to consider not in conformity any goods marked differently than requested in the purchase order or relevant communications.

8.3 Unless agreed otherwise, Supplier shall not mark any sign, logo, name or part number which may directly identify the goods as a product of Supplier, except for those signs or writings required by mandatory codes, laws or regulations of any applicable jurisdiction.

9. Inspection and quality tests

9.1 Supplier shall have the obligation, at its own expenses, to carry out all tests and inspections of the materials to be used in manufacture, production and construction of the goods and of the finished goods, so to ensure they are in conformity with the purchase order and any other applicable specifications.

9.2 Upon request, Supplier shall provide Buyer copies of the reports resulting from the inspection and test performed on the finished products and raw materials. These documents shall be in English language.

9.3 A copy of the inspection and test report will be retained by Supplier at least until 1 (one) year after the expiry of the guarantee period as per par. 5.1 h). In particular circumstances, Buyer shall be entitled to ask Supplier, in writing, to retain such reports for a longer period, until the maximum of 15 (fifteen) years.

10. Conformity assessment

 

10.1 Buyer shall perform a reasonable control of the goods received to assess its conformity to the purchase order and any other applicable specification and shall notify Supplier any lack of conformity within a reasonable period from the date of consignment of the goods to Buyer’s warehouse.

10.2  A non-conformity notice shall be deemed to be issued ‘within a reasonable period’ if sent to Supplier within 20 (twenty) working days from receipt of the goods to Buyer’s warehouse.

10.3 Buyer, at its discretion, shall suggest the quickest and most effective solution to the non conformity, taking into account the prevailing interest of its customers.

10.4 Supplier shall reply to the non-conformity notice within 3 (three) working days, unless Buyer requests in writing a reply within a shorter period. In the lack of a reply within the deadline set forth by Buyer, or failing Supplier to take any necessary step to deal with the non conformity, Buyer shall adopt all the necessary measures to solve the lack of conformity, charging to Supplier all the costs incurred.

10.5 Unless agreed otherwise with Buyer, goods not in conformity shall be rejected and returned to Supplier at its own expenses or disposed or selected or re-worked at Supplier’s expenses; the value of any goods not in conformity or of missing goods, added with any cost incurred by Buyer to solve the non-conformity, shall be deducted from the payment of the corresponding invoice. Buyer shall be in any case entitled to set off against any sums owed to Supplier.

10.6 Buyer shall retain the right to buy the corresponding goods not in conformity or missing from other companies and charge Supplier the higher price paid to procure the goods, if any.

10.7 In case of hidden or latent defect or other lack of conformity, Buyer shall notify it within 20 (twenty) working days from the date when the defect becomes apparent or it is notified to Buyer by any of its customers, distributors or agents.

11. Confidentiality

11.1 All data, designs, drawings, specifications, communications and documents, including these Terms of Purchase, in whatever forms provided by Buyer shall be used by Supplier solely for the purpose of performance of its obligations under the purchase order, shall be treated as strictly confidential and shall not be disclosed to any third party without the prior written approval of Buyer, even after termination of the business relationship with Buyer.

11.2 When authorized by Buyer, Supplier shall disclose such information just on a ‘need-to-know’ basis and shall inform the recipient of the confidential nature of the information.

11.3 Supplier shall not reference Buyer nor the work performed for Buyer without its prior written approval.

 

12. Intellectual property

12.1 Supplier warrants that the design, manufacture, sale and distribution of the goods provided to Buyer do not infringe directly or indirectly any patent, copyright, registered design, trade secret, trademark, trade name or other intellectual property right of any third party.

12.2 Supplier shall release, indemnify and hold Buyer harmless from and against any and all costs, including legal fees and court costs, expenses, fines, penalties, losses, damages and liabilities arising out in connection with any alleged or actual intellectual property right claim or demand by any third party.

13. Buyer’s trade name and logo

 

13.1 Buyer may request Supplier to mark Buyer’s logo and/or trade name on the goods or packaging provided under the purchase order.

13.2 In this case, Supplier shall:

a) recognize the exclusive rights of Buyer deriving from the registration of its logo according to the applicable international laws;

b) reproduce the logo or trade name exclusively according to the drawings provided by Buyer;

c) not use the logo or trade name for any goods supplied to third parties or in any case not authorized by Buyer;

d) manufacture or instruct any supplier or subcontractor to manufacture logo marked packaging just in the quantity necessary to prepare the scheduled delivery(ies) under the purchase order.

13.3 Supplier undertakes in case the use of the logo does not conform to the above mentioned prescriptions, to pay as damages a flat fee of € 50.000 (fiftythousand), notwithstanding the possibility of Buyer to request further damages suffered.

13.4 If using suppliers or subcontractors for the design and manufacture of customized packaging, Supplier shall choose them among companies of proved reliability and shall inform them of the obligation arising out from this article.

13.5 Supplier shall take any reasonable step to avoid any unauthorized use of Buyer’s logo and trade name by any third party and shall promptly report to Buyer any offending action of which it may be aware.

13.6 On Buyer’s written request, Supplier shall immediately terminate the use and marking of Buyer’s logo and, if applicable, shall give its subcontractors the necessary instructions to terminate the marking. Within 5 (five) working days, Supplier shall destroy or instruct its suppliers or subcontractors to destroy any drawing or picture of the logo received by Buyer, whether on electronic file or on other tangible media, including copies, as well as the part of any mould or tool reproducing Buyer’s logo. Supplier shall provide Buyer a written certificate regarding destruction within 10 (ten) working days

14. Corporate social responsibility

 

14.1 Buyer and Supplier recognize that any business activity should be developed with respect to the people involved and the environment in which they operate.

14.2 Supplier shall take any reasonable step to:

a) comply with the applicable environmental laws and regulations, in particular concerning the management of hazardous material and waste;

b) provide a safe and wealthy working environment for their workers, in conformity with the applicable local and international regulations;

c) adopt sound labour practices and treat their workers fairly.

Supplier shall strictly comply with the applicable local and international local minimum age laws and regulations.

14.3 Supplier shall take any reasonable step to cause its suppliers or subcontractors of any tier to conform to the principles set forth in par. 14.2.

14.4 Supplier acknowledges that in case of serious violations of the principles set forth in par. 14.2, Buyer is ready to discontinue the business relation.

15. Force majeure

15.1 Neither party shall be liable for any failure or delay in performance under the purchase order to the extent that said failures are due to Force majeure events.

15.2 For the purposes of this article, Force majeure means any event that is not foreseeable or, if foreseeable, is beyond the reasonable control and without the fault or negligence or the party affected thereby, including, but not limited to:

a) strikes, lockouts, labour actions or trade disputes;

b) acts of God, explosions, lightning, fire, flood, hurricane;

c) epidemics and quarantine restrictions;

d) unplanned and unforeseeable disruption of public utilities;

e) import or export regulations and embargoes;

f) other acts of governmental authorities, war, riots, civil commotion or disorder, insurrection, revolution, terrorism.

15.3 Supplier acknowledges that the non performance of a subcontractor or a supplier of any tier shall not be considered Force majeure under the purchase order unless the subcontractor or supplier itself is facing a Force majeure event or situation.

15.4 The party invoking Force majeure shall provide the other party full evidence of the situation, with supporting declarations of any competent public authority.

15.5 In case of Force majeure the time to fulfil the obligations under these Terms of purchase and the purchase order will be extended by a period equal to the delay caused by Force majeure events. The parties retain the right to terminate the purchase order if such delay exceeds 30 (thirty) days; Buyer retains the right to cancel the purchase order when it becomes necessary to buy the goods from other companies in order to fulfil its contractual obligations to customers.

16. Termination for breach

 

16.1 Without prejudice to any rights or remedies at law or any other provision under these Terms of Purchase, in particular as per par. 4.4 a), Buyer shall be entitled to terminate the purchase order at any time upon written notice to Supplier, if Supplier defaults by failing to perform any of its obligations under the Terms of Purchase or the purchase order.

16.2 Unless agreed otherwise in writing, termination will become effective 15 (fifteen) days after receipt of written notice from Buyer unless within this deadline Supplier has remedied the default or, being not possible to remedy the default within 15 (fifteen) days, is diligently proceeding to cure the default by taking active, effective and continuing steps to do so. Buyer shall retain the right to terminate the purchase order if the default is not remedied within 30 (thirty) days after receipt of the notice by Supplier.

 

17. Assignment of credits

 

17.1 Supplier shall not assign its credits towards Buyer without Buyer’s written approval.

18. Applicable law

 

18.1 These Terms of Purchase and the purchase order shall be interpreted and governed according to the Italian law.

19. Severability

 

19.1 In case one or more of the provisions contained in these Terms of Purchase should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby.

20. Dispute settlement

 

20.1 In case a dispute arises out of or in connection with these Terms of Purchase or the purchase order, relating to its interpretation, validity, execution or termination, parties shall entertain negotiations to reach a friendly settlement.

20.2 If a friendly settlement in not reached within a short period, parties undertake that all disputes shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber ofCommerce by one or more arbitrators appointed in accordance with the said Rules.

The Arbitral Tribunal shall decide ex aequo et bono.

Authorized signature and stamp

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Date

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