General Terms and Conditions of Sale

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GENERAL TERMS AND CONDITIONS OF SALE

 

1) Introduction

The general conditions of sale (hereinafter GCS) of Baier & Michels (hereinafter b&m), which are stated, below have been prepared in accordance with current regulations and provide the legal basis for any contract signed by b&m unless they are expressly derogated in writing in specific orders or agreements. The GCS shall apply to all contracts, orders received even if they are not expressly confirmed by the Customer (including orders defined as 'open orders' or 'programmed', offers, DDT, technical documents, plans and drawings provided by b&m) and they shall be deemed as automatically accepted by the customer, fully and unconditionally, with the issue of the orders.

The following GCS are written in Italian and English. In case of conflict, the Italian version will prevail.

 

2) Order

2.1) Order and delivery

Order means any documents containing the identification of the requested supply, such as quantity, type of product, price and delivery date. The order will be transformed into a binding contract in the event of Customer's express acceptance by any written means (fax, email, etc.), and/or at the time of the first delivery accepted by the customer. Order execution means the material is made available to the customer. By the acceptance of the product, it is understood that the customer shall mean acceptance of the terms and conditions of supply set forth herein. In the case of open or scheduled order the customer agrees to the withdrawal of the minimum lot production established at the time of the first delivery schedule.

2.2) Changing the order

Any request for an amendment to the contract / order must be agreed in writing between the Customer and b&m. In the absence of express acceptance of a party, the previously agreed contract terms remains unchanged.

2.3) Cancellation of order

In no event, except in the case of force majeure, the customer may cancel the order. If it intends to proceed in this sense, it shall notify in writing its request to b&m and b&m, in the following ten days, may accept or reject the request, or indicate to the customer the costs for the acceptance of the request, which will take into account the costs incurred by b&m for supplies stocks of raw materials or otherwise used, equipment specifications and costs of study and design. b&m will be entitled to retain any sums received by the customer, paid for any previous agreement (even as equipment and / or molds.)

 

3) Security stock

If agreed with the customer, b&m is committed to maintaining a security stock likely able to satisfy even small changes in the customer needs.

 

4) Documents, drawings and samples

All documents, drawings, technical reports, assessments and samples (prototypes and pre-series ) made by b&m for the Customer are transmitted only for the specific use meant; the transmission does not involve transfer of ownership or any rights of use. Customer and b&m shall be bound to strict confidentiality and privacy, as agreed in paragraph 6, with respect to the existence and content of the documents shared.

In the event of a different use of the shared/exchanged material/documents, the aggrieved party shall be entitled to act for compensation.

The Customer shall be responsible for the safekeeping of the above mentioned materials and agrees to return all the material received by b&m at the time of termination of the contract or within 15 days from b&m 's request .

The Customer shall handle what received with the strictest secrecy and confidentiality and will not, either directly or indirectly, perform any tests on what received from b&m, without the prior written consent of the latter. In the event of breach of this clause b&m may suspend the supply and demand compensation for damage. b&m shall be entitled to ask the customer to jointly share the costs for the construction of tooling, molds and everything else needed for the production left, which will remain, unless otherwise agreed, the exclusive property of b&m.

 

5) Product

5.1) Use of the product

b&m is committed to delivering the product in accordance with the technical specifications agreed with the customer. The product will also be compliant with the safety, health and environmental regulations.

The customer shall be solely responsible for use of the product, which shall be utilized as communicated to b&m. No responsibility can be attributed to the b&m for a non-permitted use of the product supplied, incorrect, or different from what agreed upon. The Customer expressly, upon receipt of the product ensures that the it complies with its needs and it is suitable for the use and the purposes previously indicated to b&m.

5.2) Product packaging

b&m will provide the product packed in compliance with the regulations on safety and hygiene. The Customer shall be solely responsible for proper storage and disposal of this product, an activity that must be done in such a way as to allow proper storage of technical and functional characteristics of the product supplied. No responsibility can be attributed to b&m in case of damages due to use of packaging or containers different from those used by b&m, or due to bad deposit or storage.

5.3) Batch tracking

b&m is committed to ensuring the traceability of the batch of the finished products for five years after the date of delivery of the products to the customer, unless otherwise agreed.

 

6) Confidentiality

b&m and the Customer, during the relationship of supply and for 10 (ten) years after its conclusion, will be required to respect the utmost confidentiality and secrecy regarding documents, data, features, elements, technical, financial, drawings, graphs, reports, diagrams, notes, etc.. mutually learned at the time of preparation and agreement of the contract. The customer is not allowed access to b&m’s plants, without specific permission of the latter. The breach of this clause entitles the other party to seek compensation for damages and, if the breach is particularly serious, the termination of the contract.

 

7) Deliveries and Delivery Time

b&m will be required to comply with the delivery time agreed with the customer. In no case, however, the delivery date will be considered as binding and essential for the correct execution of the order, thus the Customer expressly waives any request for damages or for termination of the contract in the event of non-compliance with delivery of the product.

b&m reserves the right to notify to the customer any changes to the originally indicated delivery times. The customer can ask b&m to make their best efforts to respect the original delivery times but can’t, under any circumstances, refuse to withdraw the product. b&m has the right to suspend the delivery of the product in the event of supplies not payed.
With regard to the supplied products, b&m reserves the right of excess or short delivery of up to 5%.

 

8) Product Compliance

The customer must verify, with its staff, at his own expense and right after the delivery, the conformity of the product with the conditions set in the order.  Any dispute or claim related to visible flaws of the product, differences in weight or quantity compared with the delivery note, which accompanies the product, must be reported immediately to b&m and no later than 8 (eight) days from receipt of the product.

 

9) Product Defects

b&m is required to deliver the product without defects and in conformity to the specifications of the order. The customer, in case of presence of defects in the product, must, under penalty of forfeiture, within 8 days from the delivery, in case of apparent defects and within 8 days from the discovery, in the case of hidden defects, in any case within one month after delivery, contest the product supplied by sending b&m a written notice containing the list of defects, the number of pieces on which the same were found, the means by which the checks were carried out, the lot number and any relevant information in order to allow b&m the correct identification of the product contested.

The Customer shall return the allegedly defective product and b&m, without this constituting any admission of liability, will either repair the product or replace it and return it to the customer.

In case b&m doesn’t find any presence of defects or faults, the Customer will be invited at b&m plant in order to jointly examine the results of the investigation, after which the product will be sent back to the customer at his expense. The Customer shall not under any circumstances make autonomously, or by a third party, any treatment or interventions on the product. In this case, the product will no longer be guaranteed and thus b&m shall not be held responsible.

In case the Customer finds a defect but decides not to notify b&m and instead uses or sells the product anyway, it will lose every right to the warranty.

Any claim or dispute arising from a single delivery of the product does not release the customer from the obligation to collect and pay the remaining amount of the goods, within the limits of the order and the engagement.

 

10) Warranty and duration

As required by law in Italy and the European Union, the guarantee period is 12 months (one year) and runs from the time of delivery of the products to the customer.

The warranty shall be effective only in case of proper use of the product and when the bad performance is not even indirectly attributable to the customer for the particular use of the product as previously seen.

 

11) Force Majeure

b&m may suspend its obligations to supply and any contractual engagement with the customer in any event of Force Majeure, such as:

  • natural disasters (earthquakes, fires, floods, storms, etc..).
  • armed conflicts, wars, strife, terrorist attacks, riots, acts of terrorism;
  • labor disputes, strikes or transport sector;
  • ordinances of judicial, governmental or general public
  • import bans, embargoes, blockades of production imposed by the health authority or the public in general;
  • accidents, seizures, machine failures, explosions, lack of availability of electricity and any other cause that may limit or exclude the possibility of production.

In no case, the customer will be able to invoke force majeure to suspend payments of supplies.

 

12) Definition of prices

Prices of products are expressed in Euro and will send the order confirmation to the customer.

Unless otherwise agreed, prices shall be considered net of any tax, fee or disbursement and ex-works.

 

13) Terms of payment

Payment of supplies shall be made promptly, regardless of any disputes, as agreed with the customer, without prejudice to the Italian law n. 231 of 9.10.2002.

 

14) Delay in payments

Failure to pay within the agreed terms, shall accrue in favor of b&m default interest as determined by current Italian law. b&m shall also be entitled, if the failure of the Customer is repeated or severe, interrupt the delivery of the products, refuse the request for additional deliveries or consider the contract terminated, except for the withdrawal of current stock and of products still being produced.

 

15) Billing Notes Client

The customer can’t for any reason issue, without the consent of b&m, charge b&m any costs. The Customer shall not, therefore, unless authorization in writing by b&m, offset or withhold sums due to b&m. In this case, b&m will be able to claim interest for late or non-payment as provided in paragraph 14.

 

16) Retention of Title

The product is supplied with the formula of 'Retention of Title'. Therefore, it will remain the property of b&m until complete payment of any debt. The Customer shall take the necessary measures for the protection and safeguard of this right and shall be responsible for any consequence that may affect the product itself.

 

17) Responsibility

b&m will be solely responsible for its own activities and the correct production of the delivered product that will have the characteristics provided in the order. No other liability is under b&m’s competence. b&m will also organize and carry out production in compliance with all applicable regulations.

b&m can’t be responsible for product defects when they are due to:

  • materials supplied by the customer or a third party designated by the latter;
  • errors of design or design if these activities are carried out by the customer or a third party designated by the latter;
  • use of equipment specified or delivered by the Customer or any third party designated by the customer itself;
  • treatments or handling carried out without the consent of the b&m;
  • production errors when the process has been specified and validated by customer,
  • different use: not allowed, anomalous, atypical made by the Customer,
  • wrong stock, transportation, storage or handling of the product;
  • normal use the product or deterioration ascribable to the Customer or any third party;
  • non-compliance with the recommendations, directions or suggestions of b&m in relation to the maintenance, preservation and use of the product.

The responsibility of b&m will be limited to direct damages caused to property or personnel employed by the customer due to flaws or defects in the product recognized by b&m as caused by its product.

It is excluded any other liability for indirect damages, loss of reputation, loss of profit, loss of gains, line stoppage or any other indirect consequence of the defect of the product.

Furthermore, it should be noted that there is inherent risk of cracking and/or delayed catastrophic failure for all articles with a hardness of ≥ 320 HV or tensile strength of Rm ≥ 1000 MPa in combination with galvanic surface treatments.

As stated in the international norm ISO 4042, which is applicable in these cases, the risk of hydrogen-induced cracking and/or delayed catastrophic failure cannot be fully excluded for such components.

As a result, Baier & Michels S.r.l. recommends the use of other surface treatments or reducing the hardness or strength of the product in question. If, despite the above mentioned risks, the client decides to purchase such parts, it is at client’s own risk and any liability for damages caused by hydrogen embrittlement is hereby excluded.

 

18) Jurisdiction

The supply of the product and any consequence arising from the execution of the contract or every fact connected or preparatory to the conclusion of the contract and/or of the order, will always be, and mandatory, subjected to the Italian jurisdiction and laws in force in Italy, with the exclusion of any foreign jurisdiction or law.

 

19) Place of jurisdiction for Disputes

Any litigation that the Parties are not able to resolve by negotiation and/or arbitration shall be referred exclusively to jurisdiction of the Court of Padova, Italy.

 

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