1.1 The Order constitutes an offer to purchase the Products in accordance with these General Supply and terms Conditions ( hereinafter “Terms” or “Contract”).
The Order shall be deemed to be accepted on the earlier of: i) the Supplier issuing a written acceptance of the Order; or ii) the Supplier doing any act consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence (“Commencement Date”).
1.2 The content of all agreements between the Customer and the Supplier outside of these Terms shall require the written confirmation by the Supplier. If individual terms of these Terms are suspended through the explicit written agreement between the Customer and Supplier, the validity of the remaining terms shall remain unaffected thereby. Other terms, in particular the general business terms and conditions of the Customer, shall not apply whether or not they were explicitly rejected by the Supplier. These Terms shall also apply exclusively if the Supplier provides performance unconditionally with the knowledge of other business terms and conditions.
2. Delivery and Shipment
2.1 The delivery deadlines noted in the offer are nonbinding. Except as otherwise agreed, the supply of the goods will be Ex Works, even if it is agreed that the Supplier will take care, in whole or in part, of the shipment.
If the Supplier expects that he will be unable to deliver the Products at the date agreed for delivery, he will inform the Customer within the shortest delay, of such occurrence.
2.2 The Supplier shall not be deemed to be in delay if its deliverers, for reasons not in the Supplier’s control, perform an incorrect or untimely delivery.
2.3 The delivery deadline shall be deemed fulfilled when the delivery item has left the Supplier’s facility before its expiration or when the item has been reported as being ready to be dispatched in the case of an agreed obligation to pick up the item or the Customer’s delay in acceptance.
2.4 If shipment is delayed upon the request of the Customer or it is found to be in acceptance delay, the Customer shall be charged for the resulting storage costs of at least 1% of the invoice amount for each started month when stored at the Supplier’s facility. The Supplier shall however be entitled to dispose of the delivery item after the expiration of a fixed appropriate grace period.
2.5 Any delay caused by force majeure (as defined in art. 8) or by acts or omissions of the Buyer (e.g. the lack of indications which are necessary for the supply of the Products), shall not be considered as a delay for which the Supplier is responsible.
2.6 Any reference made to trade terms (such as EXW, CIP, etc.) is deemed to be made to Incoterms published by the International Chamber of Commerce and current at the date of conclusion of the singular Order.
3. Transfer of Risk
3.1 Unless otherwise agreed, the risk shall pass to the Customer when the goods have left the Supplier’s facility, even in the case of part deliveries or if by way of exception the Supplier has assumed other performance, i.e. assumption of shipping costs, delivery and assembly. The risk shall also pass to the Customer in the case of the Customer's delay of acceptance.
4.1 Unless otherwise agreed, the prices shall be valid "ex works" Medesano (EXW Incoterms) or from another address provided by the Supplier.
4.2 Any VAT tax due shall be calculated at the legally valid rate and shall be paid by the Customer. For domestic and
foreign business transactions both standard and nonstandard packaging cost would be listed separately in singular
invoice orders. Case by case, Parties may decide for packaging materials return, following the Supplier instructions
and free of charge. Should Stem packaging materials be damaged, lost or not returned, the Supplier shall reserve
the right to issue a correspondent debit note.
4.3 The Supplier may invoice the Customer for those additional expenses arising from changes requested by the Customer if the Supplier has agreed to the requested changes and on condition that the Supplier has provided notice to the Customer of the accrual of additional expenses.
4.4 Prices shall only refer to the destination specified on the order confirmation and shall not be binding for supplies to other destinations.
4.5 Prices shall always be calculated based on the unit of measurement used by STEM. For orders agreed upon in foreign currencies, in case of devaluations of the agreed currency against the Euro exceeding 3%, STEM shall be entitled to terminate the contract or adjust the price proportionately to the devaluation occurred after signing the contract, as well as to adjust the outstanding invoices. The Customer hereby waives its right to claim for damages and/or file complaints to terminate the contract and with regard to the adjustment clause specified above.
5.1 The Customer shall pay the Products under price appointed on the detailed order.
Unless otherwise agreed, payments must be made 30 days after delivery of the goods and receipt of the invoice to the Supplier's account; the invoice is deemed to have been received at the latest on the third day following posting.
5.2 In case of non-fulfillment of such terms, the Supplier will have the right to suspend the supply and/or to change the payment terms (eg. advanced payment). In addition, should the Customer fail to comply with its payment obligations, this will be considered as a material breach of the Contract and the Supplier shall be entitled to claim for damages and to terminate this Contract with immediate effect. For invoices not paid within thirty days of the invoice date, the Supplier reserves the right to charge the Customer automatically for late payment interest of 8% above the EURIBOR 3 month rate applied against any undisputed overdue amounts from the due date up until the date of payment. The Supplier reserves the right to change the rate of interest on sixty (60) days written notice. The Supplier reserves the right to pass the Customer debts to third parties for collection.
6. Reservation of right
6.1 The Supplier shall retain ownership of the delivery Products until the receipt of all payments arising from the business relationship.
6.2 If the Customer acts contrary to the contract, in particular in the case of a delay in payment, the Supplier is entitled to take back the delivery item supplied under retention of title ("Reserve title goods").
6.3 If the reserve title goods are inseparably mixed or joined with other items not owned by the Supplier, the Supplier shall acquire co-ownership of the new item in relation to the value of the reserve title goods to the other processed or mixed items at the time of the mixing or joining. If the goods are mixed or joined in such a way that the Customer's item is to be regarded as the main item, proportional co-ownership shall be transferred to the Customer. The Customer shall safeguard the resulting sole ownership or co-ownership for the Supplier.
7. Intellectual Property
7.2 The Supplier declares that none can use such models without its prior written permission. The Supplier declares to be in compliance with all referred copyright protection laws at local and international level.
7.3 The Customer acknowledges Supplier’s exclusive ownership of the Trademarks and acquires no right, title or interest in or to the Trademarks hereunder. Any and all goodwill associated with the Trademarks will inure exclusively to the benefit of the Supplier.
8. Force Majeure
8.1 Neither Party shall be responsible to the other or be deemed to be in breach of this Contract by reason of failure to perform obligations under this Contract to the extent that the failure to perform is due to any cause beyond their reasonable control, including without limitation an Act of God, terrorism, war or threat of war(either declared or not), sabotage, civil disturbance, strike, lock-out or other industrial action or trade dispute, power failure, flood, fire, acts of public enemy, acts or omission of any sovereign government or embargo, riot or the intervention of any governmental authority. In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure.
8.2 The delayed party's time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may terminate, in whole or in part, this Contract by giving a ten days' written notice to the delayed party without giving rise of any liability or remedies.
9.1 Any complaints relating to packing, quantity, number or exterior features of the Products (apparent defects), must be notified to the Supplier, by registered letter with return receipt, within 7 days from receipt of the Products; failing such notification the Purchaser's right to claim the above defects will be forfeited. Any complaints relating to defects which cannot be discovered on the basis of a careful inspection upon receipt (hidden defects) shall be notified to the Supplier, by registered letter with return receipt, within 8 days from discovery of the defects and in any case not later than 12 months from delivery; failing such notification the Purchaser's right to claim the above defects will be forfeited.
9.2 It is agreed that any complaints or objections do not entitle the Customer to suspend or to delay payment of the Products as well as payment of any other supplies.
10.1 The Supplier hereby warrants that the Product sold, under this agreement, meets the quality standards with possible quality and/or size variations exclusively due to manufacturing tolerance and approximately complies with the specifications submitted by the Supplier for this Product. Such warranty shall not cover the features not included in the written specifications, as well as certain outcomes and processing.
10.2 The warranty shall be valid for a minimum of 24 (twenty-four) months starting from the date of the testing date of the Product on the vehicle on which it will be installed. The warranty will run only if the Customer would have communicate, at the time of the testing of both vehicle and product, to the Supplier the serial number of the vehicle on which the product has been installed. Otherwise the warranty will automatically start form the shipping date.
10.3 The Supplier does not warrant that the Products conform to special specifications or technical features or that they are suitable for particular usages except to the extent such characteristics have been expressly agreed upon in the Agreement.
10.4 The Supplier undertakes to remedy any defects, lack of quality or non-conformity of the Products for which he is liable, occurring within 2 months from delivery of the Products, provided such defects have been timely notified in accordance with art.9. The Supplier will have the choice between repairing or replacing the Products which have shown to be defective. The Products repaired or replaced under the warranty will be submitted to the same guarantee for a period of six months starting from the date of repair or replacement.
10.6 The Customer undertakes to use the product only in line with its intended use, for which it is suitable. No defect rights exist in the following cases; unsuitable or incorrect use, unauthorized alterations and/or manipulations, incorrect assembly or commissioning by the Customer or third parties, incorrect or negligent treatment, incorrect maintenance, provided the Supplier is not responsible for them. If one of the cases above occurs the Customer shall be punished by law and this shall cause the termination of any right to manufacturer warranty.
10.7 The Supplier shall be liable exclusively for direct damage, due to the Supplier’s fault. If the Customer or a third party improperly repairs the delivery item, the Supplier shall not be liable for the resulting consequences. The same shall apply for modifications to the delivery item undertaken without the prior consent of the Supplier.
11.1 The liability is limited maximum to the order value of the delivery concerned. The Supplier shall not be liable for and shall not compensate the Customer in the event of losses, direct or indirect damage, personal injury, pecuniary and non-pecuniary losses.
12. Compliance with Applicable Law and Export
12.2 The Supplier shall have the right to withhold its performance from the Customer, if the Customer would breach such applicable laws or if all of the required authorizations have not been obtained and it is not due to the fault or responsibility of the Supplier.
12.3 Fulfilment of the contract on the part of the Supplier is under the provision that there are no obstacles to the fulfilment due to national or international regulations or foreign trade legislation as well as no embargos (and/or other sanctions).
13.1 The Customer may not completely or partially assign the rights and obligations arising in connection with deliveries without the prior written consent of the Supplier. The Supplier may assign the rights and obligations arising upon it in connection with deliveries, in particular to affiliated companies or to others entities at its sole discretion.
14. Severability Clause
14.1 Should individual conditions of these Terms be or become unenforceable, it shall not affect the enforceability of the remaining conditions.
15. Applicable Law and Jurisdiction
15.1 This Contract is governed by the United Nations Convention on the International Sales of Goods and, with respect to questions not covered by such Convention by the laws of Italy.
15.2 The Parties shall submit all disputes arising from this Contract or connected to it - including those related to its interpretation, validity, effectiveness, implementation and resolution - before the International Mediation services at International Chamber Arbitration in Milan under its Rules and Regulation, (hereinafter "the Mediation") that the Parties expressly declare to know and fully accept. The parties undertake to amicably solve to mediation before you begin any arbitration proceedings or judicial process.
15.3 If the mediation attempted fails, the disputes arising out of or related to the present contract shall be settled by
the exclusive Court of Parma, Italy.