General terms and conditions of supply
GENERAL TERMS AND CONDITIONS OF SUPPLY – MICRO SYSTEMS S.R.L.
1. Nature, validity and effect of these General Terms and Conditions
1.1 These Terms and Conditions govern the sale of products manufactured and/or marketed by Micro Systems S.r.l., headquartered in Novi di Modena (MO), Italy, Via Bologna no. 25/27, listed on the Companies Register of Modena with tax code and VAT number 01306460369.
All contracts for the sale of products by Micro Systems S.r.l. to third party buyers or customers shall be governed by these General Terms and Conditions which form an integral and substantial part of every proposal, order and order confirmation.
1.2 The buyer/customer may not invoke or refer to any conditions other than those contained herein and/or in the order confirmation. Therefore, any general terms and conditions of purchase sent by the buyer/customer and/or referred to in writing on the purchase order or indicated in the brochures or catalogues of the buyer/customer, or on its website, publications, drawings, invoices or any other document, will not be considered valid.
Any special conditions, derogations or amendments to these general terms and conditions must be specifically authorised in writing by Micro Systems S.r.l.
Therefore, any conflicting clauses included on the purchase order by the buyer/customer will not be considered valid.
1.3 These general terms and conditions are valid for an indeterminate period, and will in all cases be considered to have been made known to the buyer/customer through the signature and/or conclusion of the supply contract as described in article 2 below.
1.4 Any agreements, reports, declarations or statements made by the agents, employees or officers of Micro Systems S.r.l. made prior to, simultaneously or after the publication of the terms and conditions on the website will not be binding on Micro Systems S.r.l. unless confirmed by the latter in writing.
2. Order and supply of the Products
2.1 The buyer/customer must, when purchasing a certain quantity of product from Micro Systems S.r.l. send in writing (also by fax or email) a “Purchase Order” containing at least the following information:
– number and date of the order
– description of the product
– quantity required
– unit price
– delivery date
– terms of payment
– shipping and packaging costs.
– reference to these general terms and conditions of supply.
2.3 If the buyer/customer fails to inform Micro Systems S.r.l. in writing (also by fax or email) within 5 working days from receipt of the customer order confirmation, that he intends not to accept these General Terms and Conditions and therefore does not wish to pursue the order submitted, these conditions will be deemed accepted and the contract will be concluded and will be binding on both parties.
2.4 The buyer/customer may not, in any case, without the written authorisation of Micro Systems S.r.l. make any changes to confirmed orders.
3. Delivery of products
Delivery of the products to the buyer-customer is considered to have taken place with the shipment by MICRO-SYSTEMS of the products to the buyer-customer. The date of shipment of the Products marks the date of successful delivery of the Products to the buyer-customer.
The date and method of shipment of the Products are specified in the “Customer Order Confirmation” document sent by MICROSYSTEMS.
In no event shall the date of delivery of the products be considered as mandatory and essential for the proper execution of the order, and the buyer-customer renounces the right to make claims for damages and/or request termination of the contract in the event of failure to meet the deadline for delivery of the pro-ducts.
In any case, force major, fortuitous event and all exceptional events that may jeopardize the regular execution of the order, such as, by way of example but not limited to, difficulties in the procurement of components, raw materials, products, delays in delivery by MICROSYSTEMS suppliers, transportation mishaps and manufacturing mishaps, labor conflicts, shortage of materials and energy, action by state authorities as well as restrictions in imports and exports, shall allow MICROSYSTEMS to extend the delivery terms to an appropriate extent or, if the fulfilment of the order is compromised or made impossible, to withdraw in whole or in part from the contract, without the buyer-customer’s right to any compensation.
Micro Systems S.r.l. may in any case decide not to fulfil the order, even if confirmed, if the buyer/customer is unable to meet his payments, even in relation to other supplies or towards other suppliers, or if his financial guarantees have diminished.
4. Warranties, flaws and defects
4.1 Micro Systems S.r.l. warrants that allthe products supplied have been manufactured in accordance with the agreed technical specifications approved in writing by Micro Systems S.r.l. and by the buyer/customer.
Micro Systems S.r.l. will only answer for any defects in products which were directly attributable to defects or malfunctioning caused by non-conformity with the agreed specifications approved in writing by Micro Systems S.r.l. and by the buyer/customer.
Micro Systems S.r.l. provides no warranties whatsoever with regard to the products’ compliance with the technical and safety standards in force in the country of the buyer/customer or in any other country in which the buyer/customer decides to sell the products, or their compliance with the standards of any other products on which the buyer/customer has installed the contractual products, unless such a warranty has been expressly agreed between the parties and duly included, in writing, in the technical specifications agreed and approved by Micro Systems S.r.l. and by the buyer/customer. In such a case, the buyer/customer will be responsible for providing Micro Systems S.r.l.with a list of the national and/or international standards applicable, and the technical and safety standards in force in the destination country.
4.2 The buyer-customer, when receiving delivery of the goods, is required to verify the conformity of the product to the conditions of the order through its own staff, at its own expense and under its sole responsibility.
Any objection or reservation concerning imballage defects, discrepancies in weights or quantities with respect to the delivery note accompanying the products must be made immediately and in any case no later than 8 days after delivery of the goods.
4.3 The warranty term for each product sold by MICROSYSTEMS is twelve months from the date of delivery of the products to the buyer-customer.
The warranty gives the right to repair the product or to replace the product if, at MICROSYSTEMS’s discretion, MICROSYSTEMS determines that repair of the product is not possible or not convenient.
The time limit for notifying MICROSY-STEMS of the existence of a defect or defect in the products is set at 8 days starting, for obvious defects, from the delivery of the products and, for hidden defects, from the day the buyer-customer became aware of them or should have and in any case never beyond the warranty period or twelve months from the delivery of the products.
The buyer-customer within the next 15 days after notification of the defect shall arrange to send to MICROSYSTEMS’s headquarters the defective product with an attached report listing the details of the supply document, any defects found, all the elements useful to identify the defect.
If the check carried out does not find the defects reported or the defects are not covered by warranty or not chargeable to the responsibility of MICROSYSTEMS, MICROSYSTEMS will quantify and charge the buyer-customer for the costs incurred.
4.4 Any legal or conventional warranty other than those provided for herein is hereby excluded.
The buyer/customer will have sole responsibility for any loss, defects and/or malfunctioning of the Products and any damage caused by a Product to a third party. The buyer/customer must also release Micro Systems S.r.l. from all liability.
In addition, MICROSYSTEMS cannot be responsible for product defects, and the warranty provided in these general conditions will not apply, when they are imputable:
(a) to products which have been used incorrectly, or which have been modified, damaged, stored in an inappropriate environment or incorrectly maintained by the buyer and/or his customers, or whose malfunctioning is due to products or services not supplied by Micro Systems S.r.l.;
(b) products which have been delivered to the buyer/customer in a dismantled state, or which were not assembled by Micro Systems S.r.l. or under the control of its specialised personnel.
(c) products which have been subjected to repairs not previously authorised in writing by Micro Systems S.r.l.;
(d) any defect occurring for reasons attributable to the buyer/customer or to a third party, or caused by errors or omissions or design characteristics or any other shortcomings in the technical documentation of the buyer/customer provided to Micro Systems S.r.l.
(e) to materials supplied by the buyer-customer or third parties indicated by them;
(f) to design or drawing error when such activities are carried out by the buyer-client or third parties indicated by them;
(g) to use of equipment indicated or delivered by the buyer-client or third parties indicated by them;
(h) to treatment or manipulations carried out without the consent of MICROSYSTEMS;
(i) to production errors when the process has been indicated and validated by the buyer-customer;
(l) to dissimilar, impermissible, abnormal, atypical, or peculiar use of the product;
(m) to failure of storage, transportation, preservation or handling of the product;
(n) to normal wear and tear of the product or deterioration thereof attributable to events attributable to the buyer-customer or a third party;
(o) to non-compliance with the Supplier’s recommendations, indications, or suggestions regarding the maintenance, preservation, or use of the product itself.
5. Testing Procedures.
It is the buyer-customer’s exclusive responsibility to verify, prior to their use, that the Products purchased from the Supplier comply with and are suitable for their intended use and industry.
The buyer-customer is required to read and analyze, with his own experts, the technical specifications of the Products and the legal regulations specified therein.
It is the sole responsibility of the buyer-customer to arrange for all tests for the approval of the Products as well as for all tests and trials, including life tests.
All costs of the above activities shall be the responsibility of the buyer-customer and no liability can be attributed to MICROSYSTEMS if any defects are found at that stage.
The buyer-customer shall hold MICROSYSTEMS harmless from any liability regarding the non-compliance of the Products with the national and/or international regulations applicable in the countries where the goods are delivered and with the technical and safety standards in force in the intended field of use.
6. Limitation of Responsibility and Maximum Compensation – Covenant of Indemnity.
6. 1 By express derogation from what is otherwise provided for in these conditions of supply or otherwise provided for by laws, customs or whatever else wherever provided for and referred to in the order and/or order confirmation or elsewhere, the amount of the maximum compensation payable by MICROSYSTEMS for damages caused by the design and/or supply of defective and/or non-conforming products, as well as for damages for any reason or cause whatsoever resulting from MICROSYSTEMS’s obligations for each and every product design and/or supply relationship established with the buyer-customer (by way of example only: special, direct, and indirect, foreseeable, incidental, occasional or punitive damages also of third parties including loss of profit or revenue or cost of capital also of third parties, infringement of intellectual, commercial and economic property rights, as well as legal fees, charges and/or penalties also of third parties, compensation for discrepancies in the quantity and/or quality of the Products, non-delivery and/or delayed delivery, defects also widespread before, during and after assembly both at the buyer-customer’s plant and in the field, defects including epidemic defects of the Products, downtime, assembly, disassembly, transportation, material expenses, third party claims for personal injury, illness, death claimed on the basis of damages suffered from Product defectiveness and any other compensation for any reason claimed and in any case attributable to the design and/or supply relationship of the Products established between the Parties) shall never exceed the maximum and all-inclusive amount of euro 100. 000.00 (euro one hundred thousand/00).
6.2 The buyer-customer accepts the limitation of responsibility and maximum compensation provided for in these general conditions of supply in favor of MICROSYSTEMS and declares that it definitively and irrevocably waives any claim, right and action against MICROSYSTEMS for sums in excess of the maximum limit of euro 100,000.00 (one hundred thousand/00 euros) provided herein. The buyer-customer agrees and undertakes to indemnify, indemnify and/or hold MICROSYSTEMS harmless for sums in excess of the compensation limit of euro 100,000.00 (one hundred thousand/00 euros) set forth in Article 6.1 above, which it will be called upon to indemnify for the design and/or supply of the Products by and/or to anyone (customers, third parties, etc…). The maximum amount guaranteed in this indemnity agreement by the buyer-customer in favor of MICROSYSTEMS is set at EUR 50,000,000.00 (EUR 50 million/00).
7. Intellectual and Industrial Property.
It is the sole duty and responsibility of the buyer-customer to verify that the Product it intends to order from MICROSYSTEMS for design and production is not covered by patent and/or other intellectual and/or industrial property right of a third party. The buyer-customer shall conduct such verification at its own expense before ordering the design and/or production of the Product.
MICROSYSTEMS shall not be held liable in any case for the infringement of intellectual and/or industrial property rights of third parties on the products sold to the buyer-customer, who shall be liable in its own right for such infringements, undertaking to indemnify and hold MICROSYSTEMS harmless from any claim for damages made by third parties having to do with the infringement of intellectual and/or industrial property rights of third parties.
8. Price and terms of payment
The prices and terms of payment are stipulated in the “customer order confirmation” sent to the buyer/customer by Micro Systems S.r.l.
The prices listed in the “customer order confirmation” may change due to the increase in the prices of components and/or raw materials, from the increase in the costs of production, energy, transportation. In such cases MICROSYSTEMS will proceed to update the price of products according to the percentage of change in these costs and communicate the updated price to the buyer-customer who will be required to pay it without any right of withdrawal from the contract.
The prices quoted by MICROSYSTEMS are, unless otherwise specified in writing in the “Customer Order Confirmation” document, ex MICROSYSTEMS warehouse exclusive of taxes, freight, customs and other fiscal charges.
MICROSYSTEMS will, upon successful delivery of the products, issue and release to the buyer-customer the relevant invoice containing:
(a) The listing of the products covered by the delivery;
(b) The identification number of the purchase order sent by the buyer-customer and that of the corresponding customer order confirmation sent by MICROSYSTEMS as well as the reference to any notices of price changes in the meantime occurred;
(c) The relevant shipping documents.
The buyer-customer will pay for the products at the price, in the manner and within the time specified in the “Customer Order Confirmation” document or in any subsequent communications sent by MICROSYSTEMS to change the sale price due to price increases, production costs and raw materials of the products.
9. Prohibition of Distraction of Employees.
The buyer-customer undertakes and obligates itself without fail to MICROSYSTEMS both during and for a period of 5 (five) years following the termination of the business relations existing between the Parties, to refrain from prospecting, directly or indirectly, any employment opportunities to employees and/or collaborators and/or consultants, including external ones (whether established in individual or corporate form) of MICROSYSTEMS, even if not directly involved in the execution of this contract.
Violation of the above prohibition will result in the buyer-customer’s obligation to compensate MICROSYSTEMS for all damages suffered.
10. Judicial Authority and Exclusive Jurisdiction.
10.1 The Judicial Authority competent to hear disputes relating to the existence, execution, interpretation, validity, non-performance or termination of these general conditions of supply is exclusively that of Italy.
10.2 The parties establish that competent to decide any dispute arising from or related to these general conditions of supply, including any dispute relating to the existence, execution, interpretation, validity, non-performance or termination thereof, shall be exclusively the Court of Modena (MO-Italy).
11. Applicable Law.
These general conditions of supply are governed by and shall be interpreted exclusively by Italian law.
The application of the Vienna Convention, as well as that of any other international convention, is excluded, the regulation of these general conditions of supply and all disputes referred to them being exclusively referred to the application of Italian law.
12. Processing of personal data
Pursuant to and for the purposes of EU Regulation No. 2016/679 (GDPR) and Legislative Decree 196/2003 as amended and supplemented, MICROSYSTEMS and the buyer-customer acknowledge that they have mutually informed each other and agree that the personal datacollected for the formalization of the supply contracts governed by these general conditions are subject to processing in the Customer/Supplier file for civil and tax compliance and for management, statistical, commercial and marketing purposes.
13. Final provisions
13.1 The original text of these general terms and conditions of supply has been drafted in Italian, which is the only version binding on the Parties.
13.2 Subject to the contents of the foregoing subparagraph 11.1, the original Italian version of these general terms and conditions may also be translated by Micro Systems S.r.l. into other foreign languages for the sole purpose of facilitating the exchange of information among its customers with regard to the contractual provisions, and will under no circumstances affect the validity of the Italian version of the conditions.
1133 These general terms and conditions cancel and replace any other terms and conditions, whether written or oral, which may have been made between Micro Systems S.r.l. and the buyer/customer.
13.4 If any of the provisions in these general terms and conditions or order confirmations is cancelled or declared null or unenforceable, the validity of the remaining clauses shall not be affected.
13.5 The failure to exercise any right or entitlement granted under these terms and conditions shall not prevent or prejudice the right to enforce such provisions at a later date, nor the right to enforce any other provision, right or entitlement granted hereunder.
13.6 All the information relating to the other party, the execution of the activities, the products or any other information which may be made known in relation to the contractual relationship shall be considered confidential and therefore may not be disclosed to any third party nor be used for any purposes other than the correct execution of the contract.
13.7 All the licence rights relating to the production, marketing, sale and use of the products supplied to the buyer/customer, or to anything which may be discovered, invented or designed in relation to the contract, are and shall remain the exclusive property of Micro Systems S.r.l.