GENERAL TERMS AND CONDITIONS
- GENERAL CONDITIONS OF SALE
1. Legal effect
1.1. These general terms of agreement (hereinafter referred to as “General terms”) regulate and apply to all the supplies from Bormioli Pharma S.p.a. (hereinafter referred to as “Bormioli”) to its customers (hereinafter referred to as “Customers” and singularly “Customer” and hereinafter referred to jointly as “Parties” and singularly “Party”), and also concern the formalisation of relations. The General terms form an integral and substantial part of all supply agreements, intended as a) single agreements closed after the acceptance of orders b) any other agreement, including ongoing agreements or agreements relating to regular or continuative services, stipulated between the Parties and having as object the supply of the products listed in 3.1.
1.2. The Customer’s general terms will not be applied, not even where expressly mentioned in orders or orderconfirmations accepted by Bormioli unless otherwise expressly agreed in writing by the Parties. Any exception to the General terms will have legal effect only if formalised in writing and signed by both Parties. The General terms can be applied both to the supply of standard items, included customized items realized and developed upon specific Customer’s requirements. These General terms cancel and supersede the previous general terms of Bormioli Rocco Spa or of the Customer applicable in the relationship. In any case Bormioli is entitled, at any time, to amend and/or replace General terms hereof. The amendments and/or replacements will have immediate legal effect and will be enforceable to the Customer as soon as they are notified in writing to the latter. The Customer may refuse them by sending written notice to Bormioli. In any case, vexatious clauses shall be specifically approved in writing. If approval of amendements and/or replacements is not granted, the corresponding clauses of these General terms will continue to be valid.
2.1. Bormioli General Specifications (hereinafter referred to as the “Specifications”) form an integral part of the General terms even if not annexed to the Terms. The Specifications must also be intended as an integral part of the single supply agreements or purchase order. The Specifications may refer to product categories, to single products or customized items. When a Specification is specific for a given product, in the supply relationship regarding that given product any reference made to the Specifications in the General terms must be intended as referring to that specific Specification, which will prevail over the Specifications for product categories. When there is a special Specification for a given Customer, in the supply relationship with that given Customer any reference made to the Specifications in the General terms must be intended as referring to that specific Specification, which will prevail over all the other Specifications. This is subject to other written agreements signed by the Parties.
3.1. The object of the supply relationships regulated by these General terms are both standard and customized products, manufactured by Bormioli and/or, on behalf of the latter, by any subsidiary company of Bormioli Pharma S.p.a. or by third parties, as well as products that are simply marketed by Bormioli. Customized products are products made from specific indications or using technical or technological knowledge of the Customer. The Customer for which the customized products are manufactured shall hold Bormioli harmless from any claim made by third parties, in particular for unfair competition, or for counterfeiting or appropriation of patents, trademarks, industrial models, ornamental models and drawings, or for any other violation of industrial or intellectual property rights, copyrights or know-how in general. The Customer takes full responsibility for the personalized product, pursuant to Legislative Decree no. 06.09.2005 no. 206, and Directive 85/374/CE as amended, as well as equivalent legal provision in the countries where the products will be used and/or marketed, and undertakes to hold Bormioli harmless from and indemnified against any third party claim, without the Customer being entiled to object and/or cavil whatsoever for any reason.
3.2. Bormioli will be the exclusive owner of any eventual improvement and/or adaptation and/or integrations made by it to the drawing or to the design provided by the Customer. Said improvements and/or adaptations and/or integrations may not be used by the Customer either directly or indirectly. It remains firm the application of the provisions set forth under clause 3.1 above also with reference to said adaptations and improvement as resulting from Customer’s design or drawing.
3.3. Unless otherwise agreed in writing by the Parties, the molds necessary to manufacture customized products are the exclusive property of Bormioli, even in case the Customer is required to pay a non returnable amount to be agreed by the Parties, which must not be considered the price thereof. The Customer may not request its delivery, not even after the relationship has terminated and also in such case the molds will remain the property of Bormioli and will be kept by Bormioli until the time of their destruction. Maintenance and repair expenses shall be borne by Bormioli.
3.4. Any product sample or product images contained in schedules, advertising materials, price lists and the like shall have mere indicative value, even when sale is performed pursuant to art. 1522 Civil code.
3.5. The Customer shall be liable for substanses/liquids it will introduce into the Bormioli’s container. The Customer expressly recognise to have knowledge of (i) the composition of the end product; (ii) the effect caused by the contact with Bormioli’s products; (iii) the complementarity between the Bormioli’s products and the end product and/or any other packaging materials; (iv) the intended use of the finished product; (v) the relevant production and packaging processes; (vi) all the evaluations regarding the product (in glass, plastic or other material) that they intend to buy from Bormioli; (vii) and the occurance, before use of Bormioli’s goods, of compatibility tests between the products supplied and all the materials that will come in contact with it, including the packaged product. The Customer is also responsible for the type-approval of the product for the various use/packaging phases and for supplying the information to the end user for correct use of the finished product and of its package, taking also into account the fragility of the materials. The Customer takes full responsibility pursuant to Legislative Decree 06.09.2005 no. 206 and Directive 85/374/CE, as amended, and to other provisions of law applicable in the countries where the finished products will be marketed and/or used, with reference to both the finished product and the product supplied by Bormioli obliging to hold Bormioli harmless from and indemnified against any third party claim, without the Customer being entiled to object and/or cavil whatsoever for any reason.
4.1. All orders must be placed in writing and sent according to the instructions of point 13.1 with precise indication of the type and number of products ordered. Any verbally placed orders will be taken into consideration only after Bormioli has received the written document thereof. Bormioli reserves the right to choose whether to accept or reject the orders received. Acceptance may be sent by written notice by any of the means indicated in point 13.1 below, or by giving simple execution to the order. In the latter case Bormioli must, within a reasonable time, inform the Customer that execution has started and therefore that the order has been accepted.
4.2. If the order acceptance on the part of Bormioli does not conform with the order, it must be considered as a counter proposal and it will be considered as accepted by the Customer unless objected within seven days of its receipt, without, once said period of time has expired, the Customer being entitled to claim and/or cavil whatsoever for any reason.
4.3. If the order contains indications in contrast with the provisions set forth in points 5.1, 5.2., 6.1. and 6.2. below, and Bormioli’s acceptance differs from the order with respect to the elements of the order that do not conform with the above provisions, they will be considered as without any legal effect and consequently they will be automatically replaced with the above provisions, unless otherwise expressly authorized by Bormioli in the acceptance.
4.4. Any agents, brokers and other business auxiliaries of Bormioli will not have the power to bind Bormioli in any way. In particular they do not have the power to stipulate agreements on behalf of Bormioli, to amend or cancel agreements in place, to change delivery terms, grant sale or purchase exclusive rights, grant discounts or allowances or payment extensions, collect sums of money, unless they have received specific power of attorney for said purposes. If the Customer makes payments to the above indicated persons, the obligation of payment will not be considered to have been made and estinguished until the sums are received by Bormioli.
4.5. Price lists or material illustrating the product sent or in any other way delivered by Bormioli, its agents, brokers or other business auxiliaries, shall not be considered as an agreement proposal.
5.1. The delivery terms indicated in the orders, even where accepted by Bormioli, or in any other way agreed to, shall not be considered essential and shall have merely indicative value, unless otherwise expressly agreed by the Parties. Reasonable tolerance is always accepted, also in consideration of to the particular type of production and operations connected with the programming of the relevant lines. Therefore delays in delivery on the part of Bormioli shall not be considered a breach of the agreement and no claim may be laid in connection therewith.
5.2. Unless otherwise agreed in writing by the Parties, goods will be delivered ex works (EXW), in accordance with the Incoterms definition of the International Chamber of Commerce in force at the time. The place of delivery will be the manufacturing plant of Bormioli or of its subsidiary company as previously notified by Bormioli to the Customer. In case of the Customer’s failure to collect the goods or the Customer’s refusal to receive the goods, even in those cases where, by written agreement between the parties, goods are not to be delivered EXW, Bormioli shall be entitled to apply the remedies set forth in articles 1514, 1515 and 1517 of the Civil Code, without prejudice to any other remedy applicable by law or by agreement and in particular set forth in the General terms, such as for example, the not evitable scrapping of products.
6. Price – Terms and method of payment
6.1. Unless otherwise agreed in writing by the Parties, the products shall be supplied at the price indicated in the Bormioli price list in force at the time of Bormioli acceptance of the order. Unless otherwise agreed in writing by the Parties, the price shall be paid within thirty days from the invoice issuance date, by full payment on bank account indicated by Bormioli. Bormioli may issue cash orders or cashier’s check at the agreed due dates and may freely transfer to third parties the credits owed by the Customer for goods delivered. The Customer may not suspend nor delay payment of the price for any reason and in particular may not raise objections, for any reason whatsoever in connection with the goods received, unless the full price has first been paid. It must be pointed out that the Customer is required to pay the amount due in full and on time even if it has not collected the goods yet.
6.2. Without prejudice to any other remedy set forth in the agreement, in the General terms and by law, including art. 1515 of the Civil Code, or agreed by the Parties, in case of delayed payment the Customer will fall automatically into arrears and delay interest will be added to the sum due at the rate indicated in Directive 2000/35/CE of 29 June 2000, as amended, without prejudice to Bormioli’s right, if the delay reaches 30 days, to (i) terminate the agreement with immediate effect, by simple written communication to the debtor, (ii) to claim for any eventual damages suffered. Moreover, the Customer shall immediately lose the right to special payment terms with respect to any other amount due by the Customer to Bormioli, without the need for prior communication on the part of Bormioli. Bormioli may suspend any other delivery to that Customer until all the payments, the delayed payment and any other payments that have become due because of the consequent loss of right to special terms, have been made in full, it being understood that, where the goods to be delivered have already been produced, the Customer shall also pay a sum equal to 1 € per day per each uncollected pallet or part thereof for warehouse expenses, without prejudice to the obligation to indemnify Bormioli of any further damage it may suffer. For all cases set forth under clause 6.2 hereof the Customer will not be entitled to claim and/or cavil whatsoever for any reason.
6.3. Payment extensions granted to the Customer by Bormioli will not have novative effect. No compensation is accepted between Bormioli’s credit for the price of the products and any credits, actual or future, that the Customer has or will have with Bormioli. The price is inclusive of packaging as per point 8.1 below.
7. Retention of title
7.1. The products are intended to be supplied to the Customer with retention of title and shall remain the property of Bormioli until full payment of the price has been received. If the Parties agree in writing that payment may be made by cheque, bank bill, draft or cash order, the goods will remain the property of Bormioli until the time of final collection. Renewal does not imply extension.
8.1. Unless otherwise agreed in writing by the Parties, the products shall be delivered with standard Bormioli packaging. Complaints about damaged packaging shall be accepted only if submitted in writing by the Customer or by the appointed Carrier at the time of collection.
9.1. Bormioli guarantees its products against breakage under the terms and limits indicated in the Specifications, provided that the products have been used correctly and in accordance with the instructions provided or in any case for the purpose for which they were designed
9.2. Bormioli guarantees to the Customer the products’ conformity with applicable Italian and EC regulations in force at the time of delivery. Unless otherwise specifically agreed with regard to specific regulations to be identified at the Customer’s own risk, the Customer shall bear all risks relating the products’ nonconformity with other regulations. Bormioli guarantees the products against defects, lack of essential quality to the limits indicated in the Specifications, including with respect to tolerance percentages. Any other guarantee on the products is excluded (unless otherwise agreed in writing by the Parties or unless otherwise indicated in the Specifications) in terms of internal and/or external cleanliness and colour shade. In order for the above guarantee to be valid, the Customer shall be required to perform the acceptance checks indicated in the Specifications and to send a written notice to Bormioli with the results of the check within the terms indicated in the Specification or in any case within 24 hours from completion of the above checks. Failing that, the Customer will lose all rights of guarantee and will assume full responsibility, with the obligation of holding Bormioli harmless from and indemnified with respect to any and all liabilities it may incur under Legislative Decree 06.09.2005 no. 206 or Directive 85/374/CE, as amended, or similar provisions of law applicable in the countries where the products will be used and/or marketed.
9.3. Under penalty of forfeiture, within 7 days the Customer must inform by written communication Bormioli of any evident or hidden defects but detectable during the above mentioned acceptance testsunder point 9.2. Unless otherwise agreed, “supercritical” defects, as defined in the specifications, must be reported by written notification within a maximum of 24 hours from detection and in any case within three months from delivery. In any case, the Customer summoned for payment will lose the right of guarantee if the defects are not analytically reported in the manner and terms described above. After the above mentioned period of three months, every right of guarantee shall lapse. Where no specific provisions are set forth in the Specifications, the report indicating the defects detected, including the one mentioned in paragraph 9.1, shall specify with precision the nature of the defects detected, the number of the Bormioli lot to which the products that are claimed to be faulty belong and any products delivered to third parties or placed onto the market.
9.4. Within the terms indicated in the above paragraph 9.3. the Customer shall send to Bormioli samples of the products that are claimed to be defective. The Customer may not use any items from the same lot, even if the items are deemed to be non defective, until the existence or non-existence of defects is finally ascertained and classified (and in the former case the remedies under point 9.9 have been adopted). Failing that, the Customer shall hold Bormioli harmless from and indemnified against any and all consequences pursuant to Legislative Decree 06.09.2005 no. 206 or Directive 85/374/CE, as amended, or similar provisions of law applicable in the countries where the products will be used and/or marketed. The Customer, if so requested by Bormioli shall immediately recall all the products belonging to the same lot already delivered to third parties or placed on the market. The Customer shall keep all the products in the lot to which the reported products belong, including the reported products themselves, at Bormioli’s disposal for inspections. Should Bormioli, after examining the samples and/or products provided by the Customer, not accept the existence of the reported defects, the evaluation shall be based on the assessment of an appointed expert. To this end the Parties shall appoint an expert assessor, to be designated by the President of the Court of Parma at the request of the Party who first takes action, to perform a technical assessment the results of which the Parties undertake to accept as directly expressed in the agreement. The expenses for the assessment shall be borne by the losing Party.
9.5. If the complaint regards only the number of items reported, both for the purpose of their replacement and for the purpose of verifying whether this exceeded the percentage of defective products indicated in the specification above which the guarantee applies, the Parties shall perform a joint physical inspection of the lot/batch in which the defective products were detected. In case of non agreement, a third opinion shall be sought in accordance with the provisions of point 9.4 above. If the presence of defects or lack of quality is ascertained for which Bormioli is liable under these General terms, Bormioli shall replace the defective pieces or, if the defects are qualified as “supercritical”, all the products in the lot to which the defective products belong, it being understood that the expenses for returning to Bormioli the defective products and/or all the products in the same lot, as well as the expenses for transport the new products to the Customer’s premises (but not the associated liability, if the initial delivery term agreed was EXW) shall be borne by Bormioli. The terms for the delivery of the new products shall be agreed by the Parties. The Customer is not entitle to return products without prior written authorization from Bormioli. The Customer is only entitled to a reduction of the sale price. In this case the Customer shall automatically undertake the obligation to hold Bormioli harmless from and indemnified against the consequences pursuant to Legislative Decree 06.09.2005 no. 206 or Directive 85/374/CE, as amended, or similar provisions of the law applicable in the countries where the products will be used and/or marketed, without the Customer being entitled to claim and/or cavil whatsoever for any reason. In any case, Bormioli shall in no way be liable for direct or indirect damages incurred by the Customer. The provisions under point 9. replace for all effects and purposes the legal regulations applicable to both internal and international relations, regarding the guarantee.
10. Relief from liability
10.1. Without prejudice to the provisions of point 9. above with respect to product defects, lack of quality and breakages, including the exemption from any indemnification obligation, Bormioli shall not be liable towards the Customer in case of default or delayed fulfilment of the obligations deriving from the General terms and from the individual supply relations, except in the case of fraud or gross negligence.
11. Unilateral termination
11.1. Bormioli is entitled to unilaterally terminate the agreement in force without compensation pursuant to art. 1373 cc and without the Customer being entitled to claim and/or demand whatsoever for any reason.
12.1. The Customer shall not disclose to third parties nor use in any way technical or commercial information about Bormioli, whether written or oral, received or obtained in any way, even during a simple visit at the Bormioli plant or at the plants of subsidiary companies. These obligations shall not apply with reference to any information that at the time of their communication by Bormioli or of their collection by the Customer was legitimately in the public domain. Said obligations shall remain in force, with respect to each individual piece of information, until it has legitimately come into the public domain.
13.1. All notices or other notifications requested or admitted by the General terms, Specifications included, or by the supply agreement shall be made in writing and may be delivered by hand, sent by courier or by registered letterwith advice of receipt, by e-mail with electronic signature or by fax, unless otherwise indicated. For this purpose the Parties declare that address for service is at their respective registered offices.
14. General provisions
14.1. Tolerance by either Party of the other Party’s breach of the provisions under the supply agreement and/or under the General terms that regulate it (specifications included), shall not be construed to be a waiver of the provision that was violated nor of the right to enforce every term, clause or provision that was violated.
14.2. Should any of the terms or provisions under the supply agreement or under the terms (Specifications included) become void or ineffective, the remaining provisions will continue to be fully valid and binding, except in the case where a void or ineffective provision is essential for one of the Parties. The Parties shall negotiate in good faith to replace the void or ineffective provisions with valid and binding ones in order to obtain, as far as possible, the same effect as the original clause.
14.3. The titles of the articles of the General terms have been added simply to facilitate reference but should not be taken into consideration when interpreting the articles. Any reference to days, months and years made in these General terms, in the Specifications or in supply agreements must be intended as calendar days, months and years, unless otherwise specified. Any reference to provisions, regulations or authorizations made in these General terms, in the Specifications or in supply agreements must be intended as referring to the version from time to time in force, unless otherwise expressly agreed.
14.4. The supply agreement may not be assigned and/or transferred, wholly or partially (or by individual rights and obligations) by the Customer to third parties without the prior written consent of Bormioli.
14.5. The provisions that are expressly or implicitly intended to extend beyond the expiration or termination of the supply agreement, shall remain in force despite expiration or termination irrespective of the reasons and causes thereof.
14.6. Bormioli and the Customer are two independent enterprises and the supply relationship established between them does not give rise to any collaboration relationship or to the granting of exclusive rights to the Customer.
14.7. The Customer shall not acquire under this agreement any right over Bormioli trademarks and logos, without prejudice to the right to sell the products that bear these marks.
14.8. No Party shall be deemed responsible for delays or other forms of default to one of more of the provisions under the General terms or under the supply agreement in the event of force majeure. Force majeure events include, inter alia, exceptional natural events, such as earthquake, flood and the like, collapse, fire, strike, not only nationwide but also local and of single companies, lockout, riots, terrorist action, problems with procurement or transport as well as, with respect to Bormioli, production stops due to the need for maintenance, repair or renewal of plants, ovens or premises, even where caused by incorrect or insufficient maintenance in the past. However the Party must immediately inform the other Party, who will be entitled to terminate the Agreement if the force majeure event lasts more than six months.
15. Applicable law and jurisdiction
15.1. The General terms and all the supply agreements between Bormioli and the Customer shall be governed by the laws of Italy with the exclusion, for matters regarding international relationships, of the 1980 Vienna Convention on international sale of goods.
15.2. Any dispute arising out of or in connection with these General terms and/or any supply agreement shall be submitted to the exclusive jurisdiction of the Court of Parma or, alternatively, at the sole discretion of Bormioli, to the Court of Milan.
- GENERAL CONDITIONS OF PURCHASE
Art. 1 - Definitions
1.1. Wherever used with initial capital letters in these general conditions as well as in any other document being part of the Contract – as defined below – and in addition to any other definition contained in the contract, the terms listed below will have the meanings indicated next to each of them:
Good: shall mean movable assets, either standard or customized, being the object of the Contract, as defined below;
BR: shall mean Bormioli Pharma S.p.a., as purchaser, contractor, or receiver of the supply of Contract Goods;
Supply terms: shall mean the document prepared by BR or by the Supplier on BR recommendation, detailing the technical and qualitative specifications of the Good and including any possible drawing or project of the Good;
General Conditions: shall mean these general supply conditions which are in force together with any other document composing the Contract, governing the supplies of Goods from the Supplier to BR;
Particular Conditions: shall mean any particular conditions prepared by BR, which also have legal effect and are aimed at incorporating these General Conditions;
Contract: shall mean the works contract, the contract for the sale, provision or supply of Goods from the Supplier to BR, as well as all documents through which such relation is formalized and governed and notably: (i) the order, as defined below; (ii) any annex to the Order, among which for instance Supply terms, Technical specifications and Safety documents, as defined below; (iii) General Conditions; (iv) any Particular conditions;
Safety documents: shall mean the documents prepared by BR in order to ensure health and safety at the workplace if the Supplier has to carry out an activity at one of BR’s plants;
Supplier: shall mean the seller, contractor, supplier or provider of Contract Goods to the advantage of BR;
Order: it means the written document, as named and formalized, containing the agreement between the Parties concerning the contract object, that is the Good, and any other specific elements of the contract, including, but not limited to, price, delivery terms, period and other elements;
Parties: shall jointly mean BR and the Supplier, or, in the singular form, either Party separately;
Technical Specifications: shall mean the document prepared by BR or by the Supplier on BR recommendation, detailing the technical specifications and/or performance characteristics of the Good, including any different drawings and projects integrating the Supply Terms.
Art. 2 – Effectiveness
2.1. These General Conditions govern and apply to all contracts of sale, contract work, provision, and supply of Goods in general to BR, which will be subscribed between the Parties, without requiring their formalization upon the stipulation of every new Contract. Therefore, General Conditions govern the ways of formalization of relative relationships and consequently of stipulation of contracts. General Conditions therefore are – even when not formalized from time to time and/or not explicitly recalled – integral and substantial part of all Contracts, where contracts shall mean both contracts concerning individual and specific supplies, long-term contracts, including framework contracts, or any contract for periodical or continuative performances or in any case concerning several performances, and individual contractual relationships for individual performances established for instance following acceptance of BR’s orders stipulated between the Parties for the production, sale, provision or supply of Goods in general.
2.2. Possible general conditions of the Supplier shall not be applied, not even when explicitly recalled in proposals or offers accepted by BR or in order confirmations of the Supplier or in the acceptance by the supplier of proposals by BR, unless differently agreed upon in writing by the Parties . Any recall to the Supplier’s conditions established in some Supplier contract documents shall be therefore considered as not applicable and in any case ineffective, and shall not be valid as counter-proposal complements, without prejudice to the possibility that a counter-proposal can be on the contrary recognizable as to other specific contract elements, other than those concerning the application of any Supplier’s general conditions.
2.3. Any derogation to the contents of the General conditions shall be effective exclusively if contained in the Order or formalized in a written document subscribed by both Parties, expressly destined to derogate any provision of the General Conditions.
2.4. The General Conditions apply to all supplies of Goods, both standard or customized, produced or marketed by the Supplier.
2.5. These General Conditions promptly cancel and supersede any previous general conditions of BR and/or of the Supplier governing the dealings between them; therefore any subsequent supply shall be governed by these General Conditions.
2.6. BR shall be entitled to modify or replace at any moment these General Conditions with new general conditions which will be immediately effective and applicable to the next supplies as soon as they are notified to the Supplier, without prejudice to the specific written approval of any oppressive clauses. In the absence of such approval, relevant clauses of these General Conditions shall apply.
Art. 3 – Contract
3.1. As indicated in article 1 above, the Contract shall be deemed constituted (i) by the Order, (ii) any annex to the order, including Supply Terms, Technical Specifications and Safety Documents, (iii) any Particular Conditions, applicable in respect of the specific type of contract, even if not expressly recalled in the Order, and (iv) these General Conditions, even if not expressly recalled in the Order. The above sequence corresponds to the actual hierarchy of contract documents to be referred to, to decide which provision shall prevail in case of conflict between documents. Consequently, in case of conflict between the provisions of two or more of the contract documents above, composing the Contract, the sequence of the prevailing documents shall be the following one: the Order, its annex – among which Supply Terms, Technical Specifications and Safety Documents – any possible Particular Conditions, these General Conditions, unless differently agreed in writing between the Parties.
3.2. Any reference to the Contract shall be meant as reference to the entirety of the documents composing it individually on the basis of what has been specified in paragraph 3.1 above and to each of the above documents.
3.3. Order, on the basis of what has been specified in paragraph 1 above, shall mean the contract document containing the agreement between the Parties concerning the specific elements, terms and conditions of the Contract, as well as any derogation to these Conditions and to any possible Particular Conditions applicable. The Order might be hence composed of, for instance, a single contract document subscribed by the Parties at the same time, or a proposal of the Supplier and the relevant acceptance by BR, o vice versa a proposal by BR and the relevant acceptance by the Supplier. Any counter-proposal cannot implement an Order unless there is a full and unreserved written acceptance by the other Party. On the basis of what has been specified in paragraph 2.2., any recall to the Supplier’s General conditions shall be therefore considered as not applicable and in any case ineffective. The document containing such recalls shall therefore not be valid as counter-proposal complements, even if accepted, without prejudice to the possibility that a counter-proposal can be on the contrary recognizable as to other specific contract elements, other than those concerning the application of any Supplier’s general conditions.
3.4. Through this Contract BR does not grant the Supplier any exclusivity for the supply of Goods nor commits in the purchase of Goods or minimum amounts of Goods.
Art. 4 - Price – Terms of payment
4.1. Unless otherwise expressly agreed on the Order, the prices shall be firm and fixed, shall not be reviewed or modified in any way, not even by concession, in so far as necessary, to provisions of artt. 1664 and 1467 of the Italian Civil Proceedings code, inclusive (unless differently specified) of – besides Consideration for the Goods – packaging, carriage, insurance, taxes, customs duties, fees, assemblies and any other cost and charge paid by the Supplier, also for any ancillary activity - even if not expressly identified in the Contract - being necessary for the correct fulfillment of the Contract. The Supplier shall also bear any risk and hazard for any higher cost or difficulty he might meet in the execution of the Contract.
4.2. The Supplier thus waives any further economic claim which could arise from either an incorrect assessment or lack of knowledge of technical, organizational or normative facts, deriving from the execution of the Contract or in any case the Supplier’s failure to take into account any factor or element which could impact on the costs and/or on the price and/or conditions and times of the realization or delivery of the Good.
Wherever necessary, the Order shall determine the precise amount owed to the Supplier in order to eliminate or, where it is not possible, to minimize the workplace health and safety risks arising from the interferences on contract works. This amount shall not be subject to reductions and discounts.
4.3. Unless otherwise expressly agreed on the Order, Goods invoices shall not be in any case issued before the regular and total delivery of goods to which such invoices refer.
4.4. Without prejudice to any different mandatory terms of payment relating to specific Goods pursuant to mandatory rules as well as any different agreement subscribed in the Order, the payment under paragraph 4.1. shall be made to the Supplier by ninety days end of the month date of the invoice, day tenth of the month following that in which the payment term expires by bank transfer to the Supplier bank account (current account data shall be indicated in the invoice).
4.5. Any payment of the invoice shall be without prejudice to the BR rights to claim for total or partial non-fulfillment by the Supplier and/or for vices, defects, poor quality, non-conformity, malfunction of Goods or for the delivery of aliud pro alio or of amounts other than those required nor shall such payment be meant as acceptance of Goods.
4.6. In any case BR shall be entitled to interrupt the payment of the invoice in case of contract non-fulfillment by the Supplier, including any vice, defect, malfunction, poor quality of Goods and the like, even relating to supplies different from those covered by the pending invoice, until complete fulfillment of contractual obligations by the Supplier.
4.7. It is absolutely prohibited for the Supplier to assign – not even in a context of ordinary factoring operations - his own payables to BR to any third party. Without prejudice to what sets forth under paragraph 8.3 letter b below, in case, in breach of the prohibition hereof, the receivable accrued against BR is assigned by the Supplier to any third party, the latter shall be obliged to hold harmless from and indemnified BR against any claim made by the assignee.
Art. 5 Delivery – Packaging – Transfer of property – Delivery terms – Assembly and start-up – Testing - Penalties
5.1. Unless otherwise expressly agreed on the Order, Goods delivery shall be DDP (pursuant to Incoterms 2010) at the BR’s plant indicated in the Order within the date set in the Order, in conformity with provisions under paragraph 5.5. below: goods, packed as per paragraph 5.2. below, shall travel at the Supplier’s risk, the Supplier shall also bear responsibility for transport organization and costs as well as for insurance of the whole value of Goods during transport and handling of Goods, including loading and unloading from the vehicle when it arrives at BR’s plant.
5.2. Goods shall be packed in a packaging suitable to protect them against any risk of damage or deterioration during possible storage, transportation, loading and unloading and handling in general.
5.3. Delivered Goods shall be accompanied, unless otherwise agreed in the Order, by the following documents:
- Transport document and transport sheet, in case the contents are not completely indicated in the transport document;
- Certificate of conformity to rules in force and, whenever applicable, to Supply Terms and/or Technical Specifications and/or other drawings and projects prepared by BR;
- Instruction and use manual, whenever required by law or advisable due to the nature of Goods, in both Italian and English language;
- Certificate of origin, whenever required by law or by the Contract;
- Custom documents, whenever required by applicable rules;
- Specific declarations and certificates required by applicable rules;
- Safety sheets.
5.4. Unless otherwise agreed on the Order, the property of Goods shall be transferred to BR upon delivery, which shall take place pursuant to terms and modes indicated in paragraphs 5.1. and 5.5. In the case referred to in paragraph 5.7., the property shall be transferred upon full positive Good testing.
5.5. Unless otherwise and expressly requested by BR, delivery shall be executed at the date indicated or within the deadline established in the Order, date/deadline, time being of essence and to be intended as applicable to all effects. Failure to deliver by that date or within that delay, the Supplier is automatically in default thus bearing every risk and responsibility relating to the Good. From that date/deadline penalties will be due to BR for every day or part of the day of delay amounting to 10% of the Good price, without prejudice to any rights to claim compensation for any further losses and to any other BR’s rights – among which the right to the termination and fulfillment of the contract.
5.6. The signature of transport documents or of similar documents by BR or any person charged by BR shall not imply nor shall not be intended as the acceptance by BR of Goods to which such documents refer, not even as far as nature and amounts of delivered goods are concerned, and shall be without prejudice to the BR rights to claim for events including but not limited to vices, defects, poor quality of Goods, non-conformity or malfunction of delivered goods.
5.7. In case Good is shipped unassembled, by reason of its dimensions or in order not to damage the product, or has to be linked to other BR’s goods located in the plant, the Supplier shall, by its own personnel, properly contracted and remunerated, and by using equipment of its own legitimate and exclusive availability - as further specified in the following paragraph 5.11. - carry out the unloading from the mean of transport and perform the assembly and/or link to other BR’s goods. These procedures must be performed, within the Order deadline, in compliance with the rules in force, with the Safety Documents, with possible Particular Conditions and with any other guideline concerning safety issued by BR. In case the Good is a machinery, the Supplier shall, accordingly and within the Order deadlines, provide for the start-up of the Good until the steady-state operation as defined in the Order is achieved. Where the above mentioned obligations are not fulfilled, even partially, penalties will automatically accrue in favor of BR, besides possible penalties owed to BR pursuant to the previous paragraph 5.5., for each day or part of the day of delay, amounting to what specified in the Order, without prejudice to any rights to claim compensation for any further losses BR may suffer and to any other BR’s rights and compensation in favor of BR set forth by the contract or by law, including those under Article 1662 of the Italian Civil Proceedings code and in any way to the right to terminate the contract.
5.8. In the cases referred to in previous paragraph 5.7., once the Good is, depending on the circumstances, assembled and/or linked, or, in the case of machinery or relative components, started up and once the steady-state operation set in the Contract achieved, the Parties will jointly carry out the testing. It shall be performed as soon as possible and in any case within the deadline established in the Order. It must also comply with the specific guidelines contained in the order or in the Supply Terms, failing which the guidelines of international technical norms applicable to goods of the same type shall apply. It shall be then given notice of testing performance and outcome in a report jointly signed by the Parties.
5.9. In case the testing is delayed as a result of an act on the part of the Supplier, or in case its outcome is not completely positive within the date set on the Order, BR would be entitled to apply further penalties, from the date on which the positive testing of the Good should have taken place by Contract to the date on which the testing is carried out successfully, for each day or part of the day of delay as stated in the Order, which are cumulative with penalties referred to in paragraphs 5.5. and 5.7. above, without prejudice to compensation for further damage which BR may suffer and without prejudice to any other remedy or right pursuant to the law or by virtue of the Contract to BR. If the outcome of the testing is not fully successful, the Supplier shall anyway make all the necessary corrections within the date set for that purpose in good faith by BR. Once this activity has been completed, the Supplier shall promptly forward to BR a written notice, so that a new testing can be carried out within three days from the receipt of the notice and in accordance with the provisions referred to in paragraph 5.8. above.
If the Parties disagree about the outcome of the testing, the technical issues concerning the detection and evaluation of the obtained results - and therefore concerning the outcome of the testing - will be entrusted to a contractual expert, appointed, at the instance of any Party, by the President of the Court of Parma. The decision of the arbitrator is legally binding for both Parties and no appeal to this decision is possible unless in the event of the arbitrator mistake, fraud or coercion or threats. The fees of the arbitrator will be charged to BR, if the survey testifies that the outcome of the testing is fully positive, or to the Supplier in any other circumstances.
5.10. It is understood that the positive outcome of the testing and/or the signing of the report by BR shall not reduce nor void guarantees provided by the Contract or by the law in favor of BR.
5.11. By subscribing these General Conditions, the Supplier declares and guarantees that, in the execution of any activity concerning the realization, assembly, start-up, operation, testing, fine-tuning, repair of the Good and the like, as well as of any activity to be carried out at BR’s plant, he will only avail himself of full-aged, competent and qualified personnel, with the necessary skills, experience and training, who reports directly to him, exclusively subject to its organization and management and should be legally employed and managed in accordance with employment and accident prevention legislation in force from time to time. The Supplier shall ensure his personnel a wage which is at least equal to the minimum wage applicable in relation to category, qualification and seniority.
The Supplier shall constantly provide for the complete fulfillment of the above-mentioned salary obligations as well as those concerning social security, mandatory assistance, payment or (if the employee has taken up the relative option) allocation of severance indemnity, as well as application of tax deductions. The Supplier shall, upon BR’s request, provide it with a copy of the documentation attesting to the complete fulfillment of the obligations referred to above. The Supplier shall, in any case, indemnify and keep indemnified BR from all possible claims which can arise, either from the Supplier’s personnel or from social security institutions, for which BR, as a contractor, can be held liable jointly and severally, especially under the provisions of Article 29 of the legislative decree n. 276 of 10 September 2003 (as to salary obligations as well as social security contributions and insurance contribution), of Article 1676 of the Italian Civil Code and of Article 26 of the legislative decree n.81 of 2008 (as to the damage for which both the contractor personnel and any subcontractors personnel are not indemnified by INAIL, the Italian Workers Compensation Authority). In case of Supplier’s non-fulfillment of salary, social security or fiscal obligations, as well as of obligations concerning payment for compensation, even with respect to one single employee, just as in case of lack of prompt delivery to BR of the requested documentation attesting the complete fulfillment of Supplier’s obligations, BR shall be entitled to discontinue payment of any sum due to the Supplier until the latter provides BR with the documentation certifying he has completely fulfilled the infringed obligation, as well as any deriving obligation.
The Supplier shall only use work equipment being his sole and exclusive property, his complete and legitimate availability or of which he is the only, exclusive and legitimate user, as attested by a valid legal document. This equipment must also be safe and complying with any applicable legislation, it has to have passed all the necessary checks, regularly undergone maintenance and shall be accompanied by both the documentation attesting the aforesaid controls and maintenance interventions and the User’s and service manuals.
The Supplier’s personnel shall wear the same readily identifiable overalls and be provided with the suitable Personal Protective Equipment (PPE), complying with provisions and principles listed in legislative decree n.81 of 2008, with regulations referred to in legislative decree n. 475 of 1992, and with any other guideline and technical norm applicable, thus having to meet the most rigorous requirements. The Supplier’s personnel shall carry its identification card with a photograph and including the worker’s identification details, as well the name of the employer.
As explained in paragraph 5.7. above, any activity to be carried out at one of BR’s plants shall be performed in compliance with any regulation in force and in particular with environmental standards, as well as with directives on the management and treatment of waste and on health and safety at the workplace and notably with legislative decree n. 81 of 2008. The Supplier shall fulfill the obligations and achieve the fulfillments as provided therein and, notably, evaluate all the risks linked with both the performance of the activities to be carried out and with the particular conditions of the places in which the aforesaid activities must be executed, also in accordance with the interference risk assessment report (DUVRI) which, provided the necessary requirements are satisfied by virtue of the provisions of Article 26, subparagraph 3 a, of the legislative decree n.81 of 2008, BR shall prepare and attach to the Order (without prejudice to the possibility of any subsequent adjustment), besides Safety Documents, any other guideline concerning safety issued by BR, as well as all detailed information provided by BR about the specific risks existing in the environment the Supplier’s technicians are due to operate and about the prevention and emergency measures to be taken with reference to BR’s activity. The Supplier is entitled to use only the areas which Bormioli will make available to him and shall follow the safety protocol defined by BR.
The Supplier shall adopt any measure aimed at protecting workers’ health and safety and shall cooperate with BR, other BR’s contractors and any third party on the premises, for the application of preventive and protective measures against risks at work having an incidence on the Contract working activity and coordinate with them preventive and protective interventions against risks to which workers may be exposed, by mutually informing one another in order to eliminate risks arising from interference between activities performed by different companies involved in the execution of the whole activity. The Supplier shall provide his personnel with appropriate information and training about workplace risks and risks related to activities to be carried out at the BR’s plant. He also commits to make sure that his personnel meet all the provisions ensuring health and safety at work, as well as all the measures adopted in order to prevent risks and for coordination with BR, other contractors and persons or visitors present, in whatever capacity, in the premises, likewise all the safety regulations agreed with BR. The Supplier shall implement all the safety measures and any other necessary measures in order to prevent, from the execution of work and in consideration with the potential risks to which they can be exposed, any threat to his workers’ health and safety and, more generally, any threat to the health and safety of persons present in whatever capacity in the plant.
Art. 6 – Goods - Guarantees
6.1. The Supplier shall take any responsibility and give the widest guarantee with regard to the Goods it will supply to BR. If the Supplier knows or has reason to know the intended use of the Goods by BR, it shall guarantee its suitability for this particular or specific purpose. Moreover, the Supplier guarantees the full conformity of the Goods to the samples or models.
6.2. The Supplier declares and guarantees that supplied Goods and associated packaging shall:
- a. bear the CE marking wherever required, be safe and conforming to any applicable regulation in force from time to time in the European Union and in each of the adhering Member States, including Italy, and to specific technical rules of the industry, international rules included;
- b. comply with the indications and declarations affixed to any containers, packaging, labels or promotional material and that each Good is contained, packaged, marked and labeled appropriately;
- c. be perfectly suitable to the use indicated in the Contract and in particular to Supply Terms and/or Technical Specifications, wherever applicable, and in any case to the planned use; be free from any vice, defect or poor quality, properly done and fully compliant with the highest and most advanced quality standards; as well as compliant, under every aspect, with Specifications, wherever applicable;
- d. made by the original manufacturers indicated in the Oder, when other than the Supplier, and deriving from original manufacturer;
- e. upon their delivery to BR, under any modes, be in the full, indisputable and exclusive property and availability of the Supplier, free from third party claims, charges, liens, seizures and any other encumbrances so that it will be possible to transfer the full, free, undisturbed property and enjoyment to BR.
6.3. In addition to any other right or remedy pursuant to the law or by virtue of the Contract to BR, including the right to contract termination and to price reduction besides damage repayment, the Supplier, wherever required, shall be obliged, case by case, to promptly repair or replace, at its own charge and care, at the BR’s plant at which delivery took place, defective or unsuitable or non-conforming Goods or Goods other than those ordered, by a delay of maximum 72 (seventy two) hours from BR’s request, without prejudice to any other right to damage repayment.
6.4. In addition to any other guarantee pursuant to the law or by virtue of the Contract, in particular for vices, defects, non-conformity or poor quality of Goods and unless otherwise agreed in the Contract, the Supplier guarantees the good functioning of the Goods from two years from delivery – or, in case a testing is necessary, from a successful testing – where such warranty applies. Consequently, during the above mentioned period, in case of malfunctioning the Supplier is required, at his/her own expenses, to either repair or, if necessary, to replace the Goods as well as any single component which may be defective by a delay of maximum 72 (seventy two) hours from BR’s request, without prejudice to any other right to damage repayment.
6.5. As provided under paragraphs 6.3. and 6.4 above, the Goods or their repaired or replaced parts will be covered by a new two-year warranty from the date on which their function is completely restored, either by repair or by replacement. In case of replacement or only partial repair the remaining components of the Goods will enjoy a warranty extension for a period equal to the period of failure of the Goods.
6.6. The Parties agree that terms of duration and prescription of rights and guarantees due by the Supplier to BR pursuant to the law (in particular, in case of sale, under art. 1490 and subsequent of the Italian civil proceedings code as well as, in case of contract, under articles 1667 and subsequent of the Italian civil proceedings code) or pursuant to the Contract (including the guarantee of correct operation under paragraph 6.4 and times of prescription under art. 1512 Italian civil proceedings code) shall start from the delivery of Goods to BR. The Parties also agree, with reference to any guarantee, that the delay for the complaint for vices, defects, non-conformity, malfunctions or similar situations shall be sixty days from their discovery, also in case of evident defects. If the Good has to undergo a testing, all the terms listed above (concerning both warranty duration expiry and limitation) shall run from the date on which the outcome of the testing is fully positive, the successful testing having to be counted as final delivery.
On the contrary, the warranty for partial or total eviction shall be subject to terms and provisions provided for by law.
Inspections, checks, acceptance or use of the Goods provided by the Supplier will not limit and / or exclude in any way the Supplier's warranties obligations.
6.7. It shall be without prejudice to the Supplier’s contractual and non-contractual obligations and responsibilities pursuant to, but not only, legislative decree n. 206 of 2005.
6.8. The stipulation of expected insurances or the giving of any guarantee, also first request ones, shall be without prejudice to guarantees due by the Supplier.
6.9. The Supplier shall be in any case obliged to intervene within the delays and with the modes under paragraphs 6.34. and 6.4., also whenever the Supplier does not identify the soundness of BR complaint, any other cause to be acted upon separately.
6.10. The Supplier also declares and guarantees full and total traceability of Goods and shall adopt any procedures and tool necessary to this aim.
6.11. This warranty is valid and effective also towards any successors and claimants of BR as well as its customers and users of the Goods sold.
Art. 7 – Insurance policies
7.1. Unless otherwise and expressly agreed between the Parties and without prejudice to any responsibility, besides insurances mandatory by law and those explicitly required in the collective employment contracts, the Supplier shall have the following insurance coverage by means of insurance policies to be stipulated with a primary Italian Insurance company or an Insurance company duly authorized to work in Italy up to the maximum sums specified below.
- a) Employers liability insurance (RCO), which also applies to actions of compensation from I.N.A.I.L. and to damage for which INAIL does not pay compensation to the employers, with a maximum sum insurable per accident of at least € 5.000.000,00 and a maximum sum insurable per person of at least € Euro 2.500.000,00;
b) Public liability insurance (RCT), with a maximum sum insurable per accident of at least € 5.000.000,00;
c) Product liability (RCP), with a maximum sum insurable per accident of at least € 10.000.000,00;
d) Motor vehicle liability insurance (RCA) for all vehicles, proprietary and/or in use, subject to compulsory insurance as provided by legislative decree of 07.09.2005 as amended, with a maximum sum insurable of at least € 5.000.000,00;
including the following extensions:
- goods on consignment or stock;
- handled or transferred Goods;
- damages to premises and facilities where Contract works are carried out, even if used for the sake of the required activity;
- fire damages;
- interruption or suspension of its own activities and/or caused to the contractor/client;
- damages in relation to recall of any goods or products of the contractor/client;
- accidental pollution.
If the Supplier shall provide for assembly, connections, start-ups of the Good and the like, he shall likewise be covered by the Property All Risks Insurance for the value of the Good, until the transfer of property after the positive outcome of the testing. Any possible sum concerning franchises and/or overdrafts, contractual restrictions and/or exception, limits to maximum compensation amounts in the above mentioned insurance polices shall be charged to the Supplier, without prejudice of his obligation towards BR for damages caused or deriving from mistakes, omissions or non-fulfillments in the execution of the Contract.
Regardless of the subscription of the above mentioned insurance policies, it shall be without prejudice to any BR’s action and right towards the Supplier concerning any kind of damage and harm caused by the Supplier’s activity to BR, and even in the event of any fraudulent or negligent act of his personnel, his staff and auxiliary staff in general and of anyone the Supplier may avail himself of in the execution of the work.
The insurance polices shall provide for a clause ensuring the company waives its right to compensation against BR and that it shall in force.
7.2. The Supplier shall provide BR with a copy of his insurance policies whenever BR so requests. BR shall be entitled to ask for and obtain at any time a copy of the insurance declaration attesting the policies currently in force, as well as their maximum sums, and to be provided with a copy. The Supplier commits himself to obtain, before the Good is produced and delivered, a written and binding engagement from the insurance company to supply BR with the above mentioned information and copies.
The insurance policies shall provide for the company’s obligation to promptly forward to BR any possible notice of cancellation or termination of the insurance relationship with the Supplier or any possible modification of the policy conditions and/or of the relative maximum sums, at least thirty days before the date on which the aforesaid events inure.
It is understood that in this event the Supplier shall provide for the prompt replacement of the aforesaid policies with others fully compliant with provisions referred to in paragraph 7.1. above and in this paragraph seamlessly.
7.3. The above mentioned insurance coverage shall be in force for all the duration of the Contract and for the further 6-month term from its expiry/termination.
7.4. The Supplier shall immediately notify – under law or policy provisions – his own insurance company of any accident occurred.
Art. 8 - Withdrawal – Notice of compliance – Termination – Solve et repete clause
8.1. In case the Contract complements a long-term relation, BR shall be entitled to terminate the contract at any moment by written notice sent by registered mail with acknowledgment of receipt to the Supplier with a 3-month notice, without being obliged to pay for any indemnity or repayment and without the Supplier being entitled to claim and/or cavil whatsoever for any reason.
8.2. BR shall be entitled to immediately terminate the Contract, by sending a registered mail with acknowledgment of receipt to the Supplier in any event of company (mergers or splits and the like) or business reorganization (for instance business or company branch transfer, contribution or lease) concerning the Supplier or winding-up, as well as, in case the Supplier is a partnership or capital company, in the event of a change in the company control. To this purpose, the Supplier shall promptly inform BR of any company or business reorganization or winding-up and change in the company control to which it is subject.
8.3. Without prejudice to any other remedy or right pursuant to the law or by virtue of the Contract to BR, the latter shall be entitled to immediately terminate the Contract, by sending a registered mail with acknowledgment of receipt to the Supplier, and without the Supplier being entitled to claim and/or cavil whatsoever for any reason, upon any of the following non-fulfillment by the Supplier:
- a. to delay the delivery of even only one Good by 15 (fifteen) days with regard to the terms of delivery in the Order;
b. to assign his own payables to BR to any third party therefore breaching prohibitions under paragraph 4.6 above;
c. non conformity, defects, poor quality, malfunction of any nature of delivered Goods with respect to provisions under paragraph 6 above;
d. delivery of goods other than those ordered;
e. failure to fulfill obligations on repair and replacement of Goods or delayed repair or replacement;
f. failure to maintain the insurance coverage pursuant to article 7 or provision of unsuitable insurance coverage, or failure to stipulate or ineffectiveness, either initial or occurred ineffectiveness, of such insurance policies or their modification and/or modification of their insurable sums (unless in the event of an increase), even if concerning only one or more of them, or in the event of failure to display insurance policies by the Supplier or of the company to BR;
g. failure to fulfill obligations under paragraphs 9.1, 9.2, 9.3 and 9.4;
h. failure to respect prohibitions under paragraph 11.6 below;
i. failure to fulfill any salary or social security obligations, as well as obligations concerning payment for compensation, even with respect to one single employee, for which BR may be held jointly and severally liable with the Supplier, without prejudice to indemnity obligation charged to the Supplier in favor of BR;
l. failure to deliver to BR, where it is required, the documentation certifying regular compliance with salary, social security and severance indemnity obligations for its own personnel by the Supplier;
m. failure to carry out the fully successful testing within the deadline set forth in the Order;
8.4. As alternative to the provisions of the paragraph 8.3 above, and in any case without prejudice to any other remedy or right pursuant to the law or by virtue of the Contract, should the contract concern several Goods or lots or parcels or supplies of Goods, BR shall be entitled to terminate automatically the contract as to the individual Goods or parcels or lots or supplies of Goods which do not comply with or which are defective or malfunctioning or cannot satisfy promised qualities and without the Supplier being entitled to claim and/or cavil whatsoever for any reason.
8.5. The Parties agree that the delay BR shall be able to assign to the Supplier in case of non-fulfillment through notice to compliance shall be reduced to seven days, a delay the Supplier declares being fully consistent with the Contract object.
8.6. Since the circumstances under which BR shall be entitled to terminate the Contract or part of the Contract relating to individual Goods, supplement as many non-fulfillments by the Supplier, BR shall be in any case entitled to the repayment of damages suffered and to be suffered and the reception of any penalty set forth in the Contract.
8.7. The Supplier shall not be entitled to suspend for any reason and in any case the execution of the Contract, any other cause to be acted upon separately.
Art. 9 – Trademarks – Rights of intellectual and industrial property - Confidentiality - Privacy
9.1. The Supplier declares and acknowledges that Supply Terms and any piece of information and drawing they consist of, even where they are not registered or under patent protection, and even where unpatentable or unregistrable, belongs exclusively to BR, which is entitled to any and all uses and exploitation right.
9.2. The Supplier declares and acknowledges that pursuant to this contract he will not acquire any right on trademarks or other distinctive signs or rights of industrial property in general (know-how and Supply Terms included) of BR, not even in case such marks and distinctive signs or other rights of industrial property (know-how and Supply Terms, included) of BR shall be represented on the Goods or on their packaging or be used for their realization. In such event, the Supplier shall be only entitled to the use of such marks, distinctive signs and rights of industrial property for the execution of the Contract for BR.
9.3. In particular, the Supplier shall not be entitled to use, not even after Contract execution expiry or termination, marks and distinctive signs equal or similar to those of BR and/or realize Goods equal or similar to those realized by BR or in any case resulting from BR’s drawings and projects, as well as the Supplier cannot in any way use, for the duration under paragraph 9.4 below, the information and the technical know-how, which the realization of Goods imply or of which it implies the exploitation.
9.4. The Supplier commits to keep highly confidential and not to disclose, either directly or indirectly, to any third party, any information, of technical or commercial nature, written or oral (know-how and Supply Terms included) belonging to or relating to BR or to any third parties, he might receive or be informed of on the occasion of the negotiation, stipulation or execution of the Contract, or of which he was previously informed, it being understood that he will be entitled to use the received information (including those contained in the Supply Terms) only as far as strictly necessary for the execution of the Contract.
Such obligations shall be complied with until the contract has been fully and completely executed and for the five subsequent years or for a longer period until such information become known to the public and, for the information made of the combination of several pieces of information, until such pieces of information and their combination become legally known to the public. The Supplier shall use such information only within the limits strictly necessary for the Contract execution. The Supply Terms and all the guidelines and information they consist of – which are deemed to all intents and purposes as confidential information - are covered by the scope of the above mentioned obligations.
9.5. BR shall obtain every right (including the right to patent/registration, in the case of an invention, application, patentable/registrable solution, without prejudice exclusively to the authorship in favor of the Supplier), on all that is developed, invented, realized, established by the Supplier in order to execute the Contract, an element which has to be taken into consideration when remuneration is established (as referred to under paragraph 4.1. above) on the Order. The above shall be considered as BR’s confidential information and it is subject to the same obligations on the part of the Supplier and to the provisions under paragraphs 9.1., 9.2., 9.3., 9.4. above and under paragraph 9.6. below.
The Supplier commits to formalize the necessary arrangements with his own employees or staff in order to ensure the full implementation of provisions under subparagraph above, it being understood that it shall be fully responsible for any fact, act or behavior adopted by them which may violate the provisions referred to under current article 9.
9.6. After the execution of the Contract the Supplier shall, without being entitled to any additional consideration, immediately destroy or promptly deliver to BR any material containing BR’s information or rights (including the Supply Terms), even if resulting from elaborations or analysis by the Supplier, who shall not claim any right on them.
9.7. The Supplier commits to comply strictly with the provisions of Legislative decree D. Lgs. 196 of 2003. Without prejudice to the provision of paragraph 9.1 above, all pieces of information concerning the other Party which the receiving Party has acquired on the occasion of the contract shall be dealt with in the respect of the provisions of Legislative decree D. Lgs. 196/2003 on the protection of personal data and shall be used exclusively in the dealings relating to the Contract or in legal proceedings. For the purposes of the use and handling of their own personal data the Parties mutually declare they have received the information under art. 13 of Legislative decree D. Lgs. 196/2003 and shall accept, through the formalization of the Contract, such data handling pursuant to art. 23 of the decree above, it being understood that data disclosure and acquisition are in any case necessary to fulfill contract obligations and to carry out the economic activity pursuant to art. 24 of the decree. With regard to the provisions of the Contract, the Supplier shall also comply with all the provisions of the above mentioned Decree with regard to its own employees involved in any way in the execution of the Contract, obtaining, whenever required, their consent.
9.8. BR also informs that the “Controller” of personal data pursuant to the law provisions is Bormioli Pharma S.p.a, with registered office in Milano (MI), Corso Magenta n. 84,20123 and that pursuant to art. 7 of the above law the Supplier shall be entitled at any moment to access such data, asking for information on data to the personal data Controller or pro-tempore Holder (the IT Services Director, domiciled for the purposes of office at the BR’s registered office) for data updating, correction and integration, without prejudice to the right to oppose for legitimate reasons to the above processing and without prejudice to the consent given above.
Art. 10 – Code of Ethics
10.1. The Supplier declares he has received or downloaded from the BR’s website a copy of the BR’s Code of Ethics (herein after the “Code of Ethics”) and he accepts principles and precepts it contains, therefore committing in timely and rigorous compliance with behavioral principles listed in such Code.
BR shall immediately inform the Supplier of any change to the Code of Ethics.
10.2. The Supplier shall inform the Watch Committee of BR of any violation of the Code of Ethics of which it is informed on the occasion of the stipulation or execution of the Contract.
10.3. In case of serious violation by the Supplier of any provision of the Code of Ethics, the Client shall enforce the Supplier through registered mail with acknowledgment of receipt to comply within a delay of seven days, warning that failure to comply within such delay, the Contract shall become legally void.
10.4. The Supplier shall take all the necessary measures to avoid and prevent the commission of the offences referred to in the legislative decree n. 231 of 2001 and in the legislative decree n.81 of 2008. The Supplier shall adopt a valid and effective 231 model, capable of preventing the offences it describes, as well as act so as to ensure that this model is regularly carried out and implemented and that its execution and observation are strictly monitored by persons specially appointed.
10.5. In case of charges to Directors or employees of the Supplier, also in case of mere contributory negligence, for crimes set forth in the legislative decree n. 231 of 2001 or regulations for the safeguard of health and safety at workplace or for the protection of the environment, BR shall be entitled to immediately terminate the Contract.
That will be without prejudice to the BR right for repayment by the Supplier in case of suffered damages.
Art. 11 – General provisions
11.1. Any notice or communication required or accepted by the Contract shall be in writing and shall be submitted personally , by fax or e-mail or registered mail (with acknowledgement of receipt), unless differently agreed on Contract.
11.2. Any change to the contract shall be in writing and subscribed by both Parties.
11.3. The acceptance of either Party of any violation of the Contract by the other Party shall not be construed as acceptance of or renunciation to the enforcement of the breached provision nor a renunciation by the Party to its right to the enforcement of any contract term and clause.
11.4. In case some of the conditions or provisions of the Contract become void or ineffective, the remaining provisions shall remain valid and binding, unless the void or ineffective provision is deemed as essential by one of the Parties.
Parties agree to negotiate in good faith to replace void or ineffective provisions with other valid and binding provisions, so as to achieve the same effect, as far as possible, of the original clause.
11.5. The titles of the Contract articles have been included only for easy recall. Consequently, they shall not be taken into consideration in the construction of the Contract.
11.6. The Supplier shall not assign and/or transfer the Contract to any title, either totally or partially, to any third party without previous written consent by BR. The Supplier, without previous written consent of BR, shall not entrust, not even partially, Contract execution to any third party.
11.7. Provisions which are explicitly or implicitly destined to survive the expiry or termination of the Contract shall be in force after the Contract expiry or termination and notwithstanding reasons or causes which have produced such expiry or resolution.
11.8. Any reference in the Contract to regulations or rules or to the contents of authorizations shall be referred to the current version applicable from time to time, or to the standard issued to replace the cancelled provision. The Supplier shall take the risk of new investments and/or higher costs required by the execution of the Contract as a consequence of regulatory changes and/or promulgation of new norms, even if of a mere technical nature.
11.9. Days, referred to in the Contract for calculating or indicating delays, shall be meant as calendar days, unless differently explicitly agreed.
Art. 12 – Applicable law – Competent court
12.1. The Contract is governed by the Italian law, except for, as to contracts with international character, the provisions of Vienna Convention 1980 on the international sale of movable property and for conflict of law rules.
12.2. Any dispute deriving from this contract or relating to the Contract shall be the sole and exclusive competence of the Court of Parma, without prejudice to any mandatory law provisions also on compulsory mediation or arbitration, whenever applicable.