1. APPLICATION 1.1 – These General Terms and Conditions of Purchase (hereinafter “General Conditions”) apply to the sale of all goods and/or services made by the Supplier (as defined hereunder) in favour of Fornaroli Polymers S.p.A. (as defined hereunder), by way of implementation of the Purchase Orders issued by Fornaroli Polymers S.p.A, except where the Parties sign a specific written agreement to govern the terms and conditions of supply of goods or services. In such case, the provisions of the specific agreement will apply, limited to the matters covered therein. These General Conditions will prevail over general or special conditions of sale of the Supplier. Any amendment or addition to these General Conditions will be valid only if specifically accepted in writing by Fornaroli Polymers S.p.A. Amendments and additions to the General Conditions willbe limited to the purchase in respect to which they have been agreed. 1.2 – In the event that Purchase Orders regard only purchase of Goods, the provisions of these General Conditions which make specific and exclusive reference to the Services will not apply. To the contrary, if the object of the Purchase Orders is solely provision of Services, the provisions of these General Conditions which make specific and exclusive reference to Goods will not apply. 2. DEFINITIONS Within the context of the General Conditions the following terms shall have the following meanings:
- “Supplier” shall mean the supplier of goods or services who approves and accepts these General Conditions and who undersigns them;
- “Fornaroli Polymers” shall mean Fornaroli Polymers S.p.A. – with registered address in Milan, Via Archimede, 57, Vat no. 09301360961 and affiliates of Fornaroli Polymers S.p.A., as hereinafter defined.
- “Affiliates” shall mean any legal entity directly or indirectly controlled by, held or subject to the joint control of Fornaroli Polymers, such control being exercised through direct or indirect ownership of 50% or more of the share capital or rights to vote at the ordinary general meeting of such legal entity/person. Every Affiliate shall have the same rights and obligations of Fornaroli Polymers vis a vis the Supplier pursuant to the General Conditions and will rightfully exercise them vis a vis the Supplier. All references to Fornaroli Polymers included in these General Conditions must be intended to refer also to Affiliates.
- “Confidential Information” shall mean, jointly (i) Technical Specification, (ii) any other information, commercial or otherwise, in relation to Fornaroli Polymers, its materials, products, processes, services and activities supplied in any form by and/or on behalf of Fornaroli Polymers which has come to the Supplier’s knowledge in the course of execution of the Agreements, (iii) Results and (iv) any note, study or other document prepared by the Supplier which contains or reflects the Technical Specifications, the information as per point (ii) and the Results.
- “Goods” shall mean the tangible or intangible goods sold by the Supplier to Fornaroli Polymers pursuant to the Agreements.
- “Agreements” shall mean specific agreements entered into from time to time between Fornaroli Polymers and the Supplier by acceptance of a Purchase Order by the Supplier pursuant to Article 3.2 or by issuing a Purchase Order following a Contract Offer by the Supplier pursuant to Art. 3.3.
- “Contract Offer” shall mean every sales proposals for Goods or provision of Services made in writing by the Supplier to Fornaroli Polymers.
- “Services” shall mean works and/or intellectual services provided by the Supplier to Fornaroli Polymers pursuant to the Agreements.
- “Technical Specifications” shall mean any type of technical, function or quality specifications in relation to the Goods or the implementation of the Services including by way of example, designs, models, samples, prototypes, films, photographs, renderings from time to time notified in writing by Fornaroli Polymers to the Supplier or confirmed in writing by Fornaroli Polymers.
- “Purchase Orders” shall mean requests for purchase of Goods or Supply of Services issued by Fornaroli Polymers vis a vis the Supplier and having the form and content pursuant to art. 3.1.
- Results” shall mean all the results of the creative and invention activities created, realised or developed by the Supplier in implementation or as a result of the Services, including projects, inventions, data, results, information, methods, specifications, know-how, software, photographs or films, products and prints.
- “Parties” shall mean Fornaroli Polymers and the Supplier, jointly.
- “Defect ratio” shall mean the ratio expressed as a percentage between the defective and noncompliant Goods pursuant to Art. 6 and the total number of Goods delivered by the Supplier to Fornaroli Polymers in implementation of the Purchase Order to which the defective and non-compliant Goods refer.
3. Purchase Orders 3.1 – Purchase orders must be issued in writing and must include details at least on the following elements:
- Goods and/or Services forming the subject of the individual Purchase Order;
- Quantity, features and the delivery terms of Goods or Services;
- Prices, payment terms and conditions;
- Special purchase conditions even by way of exception to these General Conditions.
3.2 – Purchase Orders will become binding on the Parties once they are accepted by the Supplier by notice in writing within the acceptance terms indicated by Fornaroli Polymers in the Purchase Order, otherwise within three days from receipt of the Purchase Order. Purchase Orders will be considered to have been accepted and will become binding on the Parties even in the event that the Supplier does not send written notice of refusal within three days from sending same, provided that Fornaroli Polymers shall have the right to revoke Purchase Orders until the Supplier accepts them in writing and to refuse acceptance of Purchase Orders which arrive after the above indicated acceptance term. 3.3 – If a Purchase Order is issued following a written Contract Offer by the Supplier, it will become binding on the Parties upon delivery of the Purchase Order to the Supplier without any necessity of further approval by the latter on condition that such Purchase Order makes specific reference to such Offer. 3.4 – For the purposes of these General Conditions, correspondence exchanged by the Parties by letter, fax, email or any other form of written commercial correspondence will be deemed to have been made in writing. 3.5 Sale of Goods and supply of Services will be governed by the provisions of the General Conditions, the Technical Specifications, the Purchase Orders and the documents to which reference is made in the Purchase Orders including the Contract Offers. In case of conflict or discrepancy between the Contract Offers and the Purchase Orders or the General Conditions, the contents of the General Conditions and the Purchase Orders will prevail. 3.6 – These General Conditions are not intended to bind Fornaroli Polymers to issue a minimum or preestablished number of Purchase Orders. 3.7 Fornaroli Polymers shall have the right to withdraw from Agreements at any time even by way of exception to the first paragraph of article 1373 of the Civil Code and the Supplier cannot raise any claim for compensation, if at its discretion it retains that the Supplier’s technical suitability is not up to standard to properly fulfil the supply of Goods or Services or if, always at its sole discretion, it retains that the Supplier is in such serious financial difficulties to place in peril the fulfilment of the supply of Goods and Services and also when legal action has been taken against it for debt recovery or enforcement or if the said Supplier is insolvent or in receivership, liquidation or arrangement with creditors. 3.8 – Agreements and amounts receivable by the Supplier from Fornaroli Polymers arising from supply of Goods or Services cannot be assigned by the Supplier without the prior written consent of Fornaroli Polymers. Fornaroli Polymers shall have the right to transfer its Agreements and receivables arising thereon. 3.9 – In the event that a Purchase Order or the documents therein referred to provide that Services are carried out according to a fixed project plan during phases or milestones to which the delivery of specific results is linked, it will be at Fornaroli Polymer’s discretion to decide whether to proceed or otherwise with the phases following the first phase. The Supplier shall therefore carry out the phases following the first and Fornaroli shall pay the relative compensation only following written authorisation by Fornaroli Polymers to proceed with the subsequent phase. 4. DELIVERY TERMS AND EXECUTION 4.1 – For the purposes of ensuring compliance with delivery terms and for transfer of risk for damage or total or partial loss of Goods from Supplier to Fornaroli Polymers, deliveries must be made in accordance withcurrent “Incoterms” provisions specified in the Purchase Orders. In default, the delivery will be DDP – INCOTERMS 2010. Transport of goods must be made taking all necessary care to avoid damage. 4.2 – The Supplier must at all times comply with the terms and conditions of delivery of the Goods and provision of the Services indicated in the Purchase Orders (to be considered essential in the interest of Fornaroli Polymers). Fornaroli Polymers shall have the right to refuse the Goods and Services delivered after the agreed term and to charge the Supplier with storage costs and financial dues in relation to the period of early delivery. 4.3 – The Supply must guarantee that the quantity of the Goods delivered corresponding to that indicated in thePurchase Order. Fornaroli Polymers may request that the Supplier withdraws quantities exceeding those orders and shall have the right to directly ship them at the cost and risk of the Supplier and to charge the latter costs for disbursements made and for storage should it not proceed in a timely manner. 4.4 – In case of delay in delivery of Goods or in the execution of Services or in the case of incomplete delivery or implementation, Fornaroli Polymers may: (I) Fix a further term within which the Goods are to be delivered or the Services carried out, or (II) Notify the Supplier that the relative Agreement for compliance is complied with and ask that any amount already paid by Fornaroli Polymers is returned. 4.5 – Fixing another deadline for delivery of the Goods or provision of the Services pursuant to Art. 4.4 (I) does not preclude Fornaroli Polymers from the right to make recourse to the remedies pursuant to Art. 4.4(II) and 4.4(III) if the Supplier does not respect the extended term fixed by Fornaroli Polymers pursuant to Art. 4.4(I). 4.6 – In addition to the remedies pursuant to Art. 4.4, in any case delayed, missed or incomplete or not compliant with delivery of the Goods or execution of the Services, Fornaroli Polymers may exercise the following rights: (III) Suspend payments due to the Supplier in relation to delayed, missed, incomplete or noncompliant delivery; (IV) Request delivery of the goods by air at the expense of the Supplier; (V) Apply a penalty for the delay equal to 5% (five percent) of the compensation agreed for the Goods or Services for each week of delay until the date of delivery of the Goods or completion of the Services except for higher damages; (VI) Request compensation for any further damages caused to it directly or indirectly from delayed, missed, incomplete or non-compliant delivery of the Goods or execution of the Services including by way of example, damages for production faults, loss of profit and all additional costs incurred by Fornaroli Polymers to purchase the Goods or the Services from other suppliers as a consequence of the shortcoming of the Supplier. 4.7 – The remedies pursuant to article 4 are additional and not in substitution with respect to the other remedies pursuant to the law applicable in favour of Fornaroli Polymers, such as the right to take legal action to ensure compliance with the Agreements. 4.8 – With due warning Fornaroli Polymers shall have the right to access the head office of the Supplier to ensure compliance with the General Conditions and the Code of Conduct, the Technical Specifications and the Purchase Orders. 5. PRICES AND PAYMENTS
6. GOODS QUALITY GUARANTEE 6.1 – The Supplier guarantees that the goods will: a) comply with applicable rules and the best safety standards; b) comply with the General Conditions, Purchase Orders and the Technical Specifications; c) be free of design, production and preservation defects; d) be compatible to the parts which are to be assembled or placed on Goods according to the Technical Specifications or other information supplied by Fornaroli Polymers ; e) be suitable for use for which they are normally destined or different use requested by Fornaroli Polymers which may have been communicated to the Supplier; f) comply with the characteristics and features of the samples presented by the Supplier as samples or models. 6.1.1 – In the event that the Goods fall under the application of regulation REACH 1907/2006, the Supplier also guarantees that the goods: g) comply with the pre-registration/registration requirements pursuant to REACH 1907/2006 Regulation; h) include the relative safety card and label in Italian and updated pursuant to legal provisions; i) do not contain substances included in the candidate list SVHC (in conc. > 0.1%), the presence of which was not properly marked; j) are supplied in full compliance with the specific restriction conditions defined in Attachment XVII of REACH. 6.2 – In the event of defect or non-compliance of the Goods to the guarantees pursuant to article 6.1 /6.1.1, Fornaroli Polymers shall have the right at its discretion to make recourse to the following remedies: k) request elimination of defects and non-compliance or substitution of the non-compliant Goods orthe entire lot of which they form part at the expense of the Supplier within the term established by Fornaroli Polymers; l) request a reasonable reduction in price on Goods which are not compliant or lots which included non-compliant Goods; m) communicate termination for breach of the Agreement in relation to the non-compliant Goods or the Goods in the lot where the non-compliant Goods were included, refuse payment of the purchase price or request that amounts already paid by Fornaroli Polymers are returned in relation to defective or non-compliant Goods. 6.3 – The fact that Fornaroli Polymers has requested that non-compliance is remedied pursuant to art. 6.2 (a) does not preclude Fornaroli Polymers from exercising rights pursuant to articles 6.2 (b) and 6.2 (c) if the Supplier fails to eliminate the defects or substitute the defective Goods within the term fixed by Fornaroli Polymers . 6.4 – In any event, in addition to the remedies pursuant to article 6.2, in cases of non-conformity of Goods to the guarantees pursuant to article 6.1 / 6.1.1, Fornaroli Polymers shall have the right to: a) suspend payments due to the Supplier in relation to the non-compliant goods in the lot in which the non-compliant goods were discovered; b) if the Defect Ratio exceeds 3%, apply a penalty equal to 10% (ten percent) of the aggregate price of the Goods delivered from the Supplier to Fornaroli Polymers in execution of the Purchase Order to which the defective Goods refer, without prejudice to any higher damage claimed; c) request compensation of all direct or indirect damages arising from the defect or non-compliance of the Goods. 6.5 – If the Goods already placed in the market are defective, non-compliant to Technical Specifications or dangerous, the Supplier undertakes to cooperate with any recall campaign or to withdraw the Goods from the market in which Fornaroli Polymer operates and to reimburse Fornaroli Polymers for the recall campaign, including cost of the working hours of Fornaroli Polymers staff and external consultants used in the recall campaign. 6.6 – The guarantees and remedies expressly included in article 6 must be intended as additional and not in substitution to the other remedies and guarantees pursuant to law in the event of defects and noncompliance of the Goods. By way of exception to the provisions of article 1512 of the Civil Code, the term for reporting defects and non-compliance of Goods is 60 (sixty) days from their discovery. 7. INTELLECTUAL PROPERTY AND LICENCES 7.1 – The Supplier declares and warrants: n) that the Goods, their components and accessories and the Results are not in breach of patents, trademarks, models, copy rights or other third party intellectual and industrial property rights; o) to have the right to transfer to Fornaroli Polymers the full right to use, incorporate and sell the Goods and to use and reproduce the Results. 7.2 – If a third party claim or an investigation or decision of the judicial or administrative authority affirms, ascertains or implies the inexistence of the requisites pursuant to article 7.1, even provisionally or by way of precaution, or involves the impossibility of use of the Results or sale of the Goods or products in which the Goods or Results are incorporated in view of the inexistence of the requisites pursuant to article 7.1, in addition to the remedies under article 8, Fornaroli Polymers can, pursuant to Article 1456 of the Civil Code, terminate the Agreements governing the Goods or the Results on the basis of the breach of guarantee. 7.3 – The Supplier transfers to Fornaroli Polymers in exclusivity the intellectual property rights on the Results whether they are patented or otherwise, royalty fees or other form of rights without any limit of territory or time. The consideration agreed for provision of the Services shall be intended to include consideration for transfer of intellectual property rights on the Results. 7.4 – The Supplier acknowledges and accepts that neither these General Conditions nor the Agreements in any way imply transfer or the concession of a license to the Supplier on the intellectual property rights of Fornaroli Polymers. 8. COMPENSATIONS AND HOLD HARMLESS 8.1 – The Supplier undertakes to compensate and hold harmless Fornaroli Polymers from all direct or indirect damages, costs, expenses and liability including those arising from third party claims which are a direct or indirect consequence of: p) breach of the guarantees pursuant to articles 6.1 / 6.1.1 or 7.1; q) breach of the Supplier obligations pursuant to article 9; r) required defence from third party clients which, if held to be founded, would involve the existence of breach of the guarantees and the obligations of the Supplier pursuant to articles 6.1 / 6.1.1, 7.1 or 9; s) any other breach of the Agreements, the Technical Specifications and the General Conditions. 8.2 – More specifically and by way of example, the Supplier shall compensate and hold harmless Fornaroli Polymers from any product liability which could arise vis a vis Fornaroli Polymers because of defective Goods. 8.3 – Compensation and hold harmless obligations are not subject to the limits of time in terms of the Guarantee Period nor the expiry term pursuant to article 6.6. 9. EMPLOYEES AND TAXATION 9.1 – In undertaking the Services and in creating the Goods, the Supplier shall fulfil the following obligations: a) regularly pay its staff and rigorously abide by employment agreements and collective agreements and fulfil all social security and pension contribution obligations in a timely manner pursuant to law; b) scrupulously apply regulations governing safety at work and environment protection as well as the Fornaroli Polymers Code of Conduct attached to these General Conditions; c) supply to Fornaroli Polymers upon acceptance of the Purchase Order and, if the Services or the supply of Goods is protracted over a period of at least three months, and then on a quarterly basis, certification as evidence of social security payments made with respect to staff and/or collaborators (DURC) working on the implementation of the Purchase Order as well as documents proving INAIL (National Institute for the Prevention of Accidents at Work) registration and the relative payments of the premium; d) ensure that its employees and/or collaborators working pursuant to this agreement rigorously comply with safety at work regulations (more specifically Legislative Decree 81/08); e) ensure regular payment of withholding tax in relation to staff employed for carrying out the Services as well as VAT and all direct or indirect taxes connected to the Services. 9.2 – By way of condition for payment of amounts due to the Supplier, the same will, at the request of Fornaroli Polymers, provide documented evidence of the obligations pursuant to article 9.1. 10. TERMINATION BY DEFAULT 10.1 – Fornaroli Polymers may at any time terminate the Agreements pursuant to article 1456 of the Civil Code by notice in writing to the Supplier with effect from the date which Fornaroli Polymers shall indicate in the said notice, if the Supplier; (a) is in breach of the confidentiality obligations and limitation of use pursuant to articles 11.3 and 11.4; (b) becomes shareholder, partner or subject to any form of control, even indirect, of a competitor of Fornaroli Polymers; (c) is in breach of the obligations pursuant to article 9.1; (d) is in breach of the obligations of non-transferability of debts and Agreements pursuant to article 3.8; (e) in the event of conduct which seriously damages the reputation and goodwill of Fornaroli Polymers and its products. 10.2 – Termination of the contractual relationship will apply to supplies not yet executed at the date of the said termination. 11. CONFIDENTIALITY
12. INSURANCE 12.1 – Without prejudice to the Supplier’s liability vis a vis Fornaroli Polymers, the Supplier undertakes to sign and maintain in place throughout the commercial relations between the Parties an insurance policy to cover third party liability from sale of the Goods and undertaking the Services with a maximum limit which is proportionate to the value of the Goods or Services. 12.2 – At the request of Fornaroli Polymers , the Supplier shall make available to Fornaroli Polymers copy of the insurance policy pursuant to article 12.1 and of the payment certificate with respect to the premium. 13. APPLICABLE LAW AND JURISDICTION 13.1 – The General Conditions and the Agreements shall be governed by Italian law. 13.2 – Disputes which may arise between the Parties and which cannot be settled amicably, will be brought before the court of Milan. 13.3 – Fornaroli Polymers , at its discretion, will have the right to renounce to the exclusive jurisdiction pursuant to Art. 13.2 and to initiate proceedings at the court where the defendant is domiciled or at any other competent Court pursuant to ordinary principles governing jurisdiction and competence. 14. FORCE MAJEURE 14.1 – Failure to perform by any of the parties shall not constitute breach of these General Conditions if the defaulting party’s failure to perform is a result of objective circumstances outside its control such as by way of example, war, fire, floods, general strikes, embargo, public Authority instructions, impossibility from obtaining raw material or energy for production. 14.2 – Delays or breach of the sub-contractors of the Supplier shall not be out of the Supplier’s control pursuant to the above point. 14.3 – The Supplier shall implement the Agreements in full managerial and organisational autonomy. In no event, will the General Conditions or the Purchase Orders be interpreted as giving rise to association participation or incorporation nor will they attribute to the Supplier rights to represent Fornaroli Polymers. 15. PERSONAL DATA POLICY Information provided pursuant to Art. 13 of EU Regulation 2016/679 (hereinafter GDPR) and Art. 13 of Legislative Decree 196/2003 “Personal Data Protection Code” (hereinafter Code). 15.1 – The interested parties are informed of the following general profiles, valid for all areas of data processing:
- All data concerning the subjects with whom we interface are processed lawfully, fairly and in a transparent manner, respecting the general principles laid down in Art. 5 of GDPR and Art. 11 of the Code;
- specific security measures are taken to prevent the loss of data, illegal or unfair usage, incorrect and unauthorized access, pursuant to Art. 32 of GDPR and Art. 31 of the Code.
15.2 – References and rights of the interested parties
- the Data Controller is the underwriting Organization, in the person of the legal representative protempore. To guarantee adequate support to the interested parties the Controller has appointed a DPO, who may be contacted (Contact data: Gregorio Galli – 0523.010250 – firstname.lastname@example.org ) to exercise all the rights laid down by art. 15-21 of the GDPR and by Art. 7 of the Code (right to data access, correction, deletion, limitation, portability, opposition), as well as to withdraw consent previously given; if there is no reply to the requests made by the interested parties, they can lodge a complaint with the Control Authority for personal data protection (GDPR – Art.13, paragraph 2, letter d).
15.3 – Subject matter of data processing The organization processes personal identifying data of clients/suppliers (for example, name, surname, company name, personal/tax data, address, telephone, e-mail, bank and payment references) and of their purchasing liaison officers (name surname and contact data) obtained and used within the scope of providing the services. 15.4 – Purpose and legal basis of data processing The data are processed to:
- Enter into contractual/professional relationships;
- fulfil pre-contractual, contractual and fiscal obligations deriving from existing relationships, as well as to handle the necessary related communications;
- fulfil legal obligations or obligations provided for by a regulation, community law or order of the Authority
- exercise a legitimate interest as well as a right of the Data Controller (for example: the right of defence in a judicial setting, safeguarding of credit positions; the ordinary internal operational, management and accounting requirements). Failure to provide the aforementioned data will make it impossible to establish a relationship with the Data Controller. The aforementioned purposes are, pursuant to Art. 6 paragraphs b,c,f, appropriate legal bases of the lawfulness of data processing. If it is intended to process data for different purposes the interested parties will be asked for their specific consent.
15.5 – Methods of data processing The personal data are processed by means of operations indicated at Art. 4 no. 2) of the GDPR and precisely: data collection, recording, organisation, storage, consultation, elaboration, modification, selection, extraction, comparison, usage, interconnection, blockage, communication, cancellation nand destruction. The personal data are processed using paper, electronic and/or automated means. The Data Controller will process the personal data for the time required to fulfil the purposes for which they were collected and relevant legal obligations. 15.6 – Scope of data processing The data are processed by internal subjects properly trained and authorized pursuant to Art. 29 of the GDPR. It is also possible to request the scope of communication of the personal data, obtaining precise indications on any external subjects that operate as independent Data Supervisors or Controllers of data processing (consultants, technicians, banks, transporters, etc.). 16. TERM OF THE GENERAL CONDITIONS 16.1 – These General Conditions shall remain valid for a period of five years from the date of signing by both Parties. Upon expiry they will be tacitly renewed for a period of one year unless any of the parties notifies the other party in writing of its intention not to renew at least six months prior to the date of expiry or extension thereof. 16.2 – Upon expiry, the General Conditions shall continue to be effective with respect to the Agreements already in force at the date of expiry. In any event, expiry of the General Conditions will not affect the obligations of the Supplier pursuant to article 11 (Confidentiality) and 13 (Applicable Law and Jurisdiction). The Supplier expressly approves the following clauses of the General Conditions pursuant to article 1341 sub-article 2 of the Civil Code: Art. 3.5, 3.7, 3.8, 3.9, 4.4, 4.5, 4.6, 5.1, 6.4, 10.1, 11.2, 11.3, 13, 14.2, 15, 16.1