Last updated: Friday October 15, 2021
GENERAL CONDITIONS OF SUPPLY
Original Document: General Condition Terms v.1.0
- GENERAL PRINCIPLES
1.1. Unless otherwise agreed in writing between the parties, the following terms and conditions set forth in these General Conditions of Supply (hereinafter “General Conditions”) will apply without exception to all purchase orders (hereinafter “POs”) issued and to the relevant contracts entered into by Calzavara S.p.A. (hereinafter “Calzavara”), concerning supplies of any kind (hereinafter “Goods”). Any charges relating to the assembly and testing of the Goods will be regulated by specific, independent provisions, approved in writing between the parties.
1.2. The parties agree that following acceptance of a PO by the supplier (hereinafter, the “Supplier”), should there be any discrepancy, these General Conditions shall prevail over any general purchasing conditions of the Supplier.
1.3. Any amendment and supplement to the General Conditions, as well as any condition of sale or contract of the Supplier that differs in whole or in part from these General Conditions, will be valid only upon specific written approval by Calzavara.
1.4. Should any of the provisions set forth in the General Conditions be held invalid, illegal, ineffective or however unenforceable, the remaining provisions set forth in the General Conditions will remain in full force and effect with no further amendment.
- PURCHASE ORDERS
2.1 The POs, the delivery or supply requests and their acceptance by the Supplier, as well as any changes or supplements thereto, shall be made in writing and submitted by Calzavara to the Supplier by e-mail or certified electronic mail (hereinafter “CEM”).
2.2. The supply contract is deemed to be completed upon receipt by Calzavara, within 5 (five) working days from the date shown on the PO (after the order number), of the Supplier’s acceptance of the PO, sent by e-mail or CEM and with double signature at the bottom of the document, one for acceptance of the PO and one for approval of the vexatious clauses contained therein.
2.3. In the event that Calzavara does not receive the acceptance within the deadline specified in article 2.2. above, or that Calzavara receives a partially incomplete acceptance or containing clauses that supplement, amend, conflict with or contradict, including partially, one or more of the provisions of the PO or of these General Conditions, the acceptance is considered ineffective.
2.4. With the acceptance of the PO by the Supplier, the parties agree that, in the event of discrepancy, these General Conditions shall prevail over any general purchasing conditions of the Supplier.
2.5. Furthermore, the Supplier, whilst simultaneously submitting the acceptance, shall prepare and submit to Calzavara an order confirmation containing the products, systems and/or services provided by Calzavara.
2.6. Any previous offers made by the Supplier or negotiations between the Supplier and Calzavara (hereinafter jointly referred to as the “Parties”) shall be deemed superseded and invalid, including for the purpose of interpreting the intention of the Parties, if not expressly reported in the PO.
2.7. Any oral requests and/or agreements, including amendments and supplements to these General Conditions and to the PO are valid only if confirmed in writing by Calzavara and submitted to the Supplier by e-mail or CEM.
2.8. Calzavara shall always have the right to cancel the PO, including without just cause, prior to receiving the acceptance of the PO and the order confirmation from the Supplier.
2.9. The PO number shall be reported on all delivery and accounting documents, invoices and credit notes.
- PERFORMANCE OF SUPPLY
3.1 The Supplier shall perform the supplies through its own company, using its own means and resources and acting at its own risk, with the professionalism and diligence required by the nature of the assignment, in compliance with any applicable laws and/or regulations.
3.2 The Supplier shall not subcontract supplies to third parties, except with Calzavara’s prior written consent. In this case, the Supplier will be held liable vis-à-vis Calzavara for all the activities implemented by the sub-contractor as if they were carried out by the Supplier. In the event that the Supplier entrusts third parties to provide the supplies, the Supplier also undertakes, in accordance with and for the purposes of art. 1381 of the Italian Civil Code, to ensure that these General Conditions are included in the relevant sub-contracts.
3.3 It is the duty of the Supplier to inform Calzavara if third-party industrial or intellectual property rights are required to perform the PO, even where merely possible.
3.4 The Supplies shall be performed in compliance with the General Conditions, the PO and the technical specifications attached to the PO. Any changes to the products and systems after PO acceptance shall be expressly agreed in writing between the Parties.
- 4. METHOD OF DELIVERY
4.1. The Supplier has the duty to protect the Goods it delivers to Calzavara and to use packaging appropriate to the nature of the Goods. Where special packaging is required, owing to the nature of the products, the Supplier shall comply with the relevant instructions provided by Calzavara and reported in the PO.
4.2. Where expressly specified in the PO, transport of the products shall be provided by the Supplier exclusively according to the transport/shipping services specified therein, otherwise the Contract shall be terminated in accordance with and for the purposes of art. 1456 of the Italian Civil Code.
4.3. Unless otherwise specified in the PO, the Goods shall be delivered at Calzavara’s registered office.
4.4. Together with the Goods, the Supplier shall deliver all the technical documentation related thereto, failing which the delivery is deemed to be incomplete.
- DELIVERY TERMS
5.1. The delivery date is agreed between the Parties and specified in the PO (hereinafter “Delivery Date”). It may only be changed following written consent of both Parties. In the event that the PO does not specify a delivery date, delivery shall be no later than 10 days of receipt of the order acceptance.
5.2. Any early deliveries, even if already delivered to Calzavara’s offices, may be returned at the Supplier’s expense if they have not been previously accepted in writing by Calzavara. In any case, the Supplier is not entitled to any compensation in relation to early deliveries.
5.3. The Supplier shall immediately inform Calzavara if it expects any difficulties that may hinder its capacity to deliver or supply the Goods or services within the agreed schedule and with the quality demanded. Nevertheless, this shall not relieve the Supplier from its liabilities arising from any delay in delivering and performing the supplies.
5.4. The Supplier shall bear all risks of loss or damage to the Goods until they are received by Calzavara at the agreed delivery place specified in the PO. As an exception to the provisions of paragraph two of art. 1510 of the Italian Civil Code, the Supplier is not relieved of its delivery obligations upon handing over the Goods to the carrier or shipping company, unless expressly agreed and provided for in the PO.
5.5. Unconditional acceptance of a late delivery of Goods or late supply of services cannot be interpreted as a waiver by Calzavara to claim compensation for damages.
5.6. Unless otherwise provided for in the PO, in the event of late delivery Calzavara may apply a penalty equal to 1% of the price of the Goods for each day of delay with respect to the Delivery Date, without prejudice to its right to claim greater damages, up to a maximum of 10% of the PO value. The amount of the penalty may be used by Calzavara to offset the amounts due to the Supplier.
5.7. In the event that the Supplier fails to comply within ten days of the delivery date, without prejudice to application of the 10% penalty of the PO value as per art. 5.6. above and to the right to claim greater damages, Calzavara may terminate the contract, subject to prior notice sent to the Supplier by e-mail or CEM, in accordance with and for the purposes of art. 1456 of the Italian Civil Code.
5.8. The Parties agree that if the delay is due to force majeure and exceeds 15 days of the Delivery Date, Calzavara may withdraw from the contract subject to prior notice sent to the Supplier by e-mail or CEM.
5.9. Partial deliveries or supplies are excluded, except in the event of Calzavara’s written consent specifically indicated in the PO.
- INSTALLATION AND RETURN OF PRODUCTS
6.1. Once the Goods covered by the supply have been fully delivered, the start of the installation works shall be defined in writing between Calzavara and its Technical Manager.
- REFUSAL OF GOODS
7.1. Calzavara has the right to refuse Goods that have defects or that do not comply with the relevant PO and/or the technical specifications indicated by the Supplier. The rejection of Goods shall be notified to the Supplier by e-mail or CEM.
7.2. In this case, the Supplier shall at its own expense collect the Goods delivered and rejected within 10 (ten) working days of the date of receipt of the rejection. Once the 10-day term has expired unsuccessfully, Calzavara may return the Goods to the Supplier at the Supplier’s expense and risk.
- INTELLECTUAL AND INDUSTRIAL PROPERTY
8.1. Unless otherwise provided for in the PO, any drawings, descriptions, calculations and whatever else performed by the Supplier and pertaining to the supply will remain the property of Calzavara from the moment they are made, and Calzavara, at its sole discretion, may authorise their publication for dissemination purposes.
8.2. The Supplier transfers to Calzavara all irrevocable and limitless (in terms of time, space and content) rights of enjoyment and use of the Goods, including the right to rework, change and transform the Goods. Any results likely to be subject to intellectual or industrial protection will remain the property of Calzavara.
8.3. Calzavara also reserves the right to protect the aforementioned results in its own name, in any manner and in any form permitted by law, as well as to transfer their ownership to third parties for whatever reason and without this entailing the payment of further sums in addition to the amounts set out in these General Conditions, given that the fee for their development is already included in the fee paid to the Supplier for the supply.
8.4. With regard to technical material and/or documentation of any form or kind used to carry out this activity, as well as technical material and/or documentation brought to the knowledge of the Supplier as a consequence of the activity covered by the supply, it is agreed that Calzavara will have full and absolute ownership of such technical material and/or documentation, which cannot be supplied to third parties for any reason without Calzavara’s written consent and must be returned to Calzavara at the end of the activity. Furthermore, the Supplier undertakes not to duplicate whatever it has produced for Calzavara, nor to supply it to third parties without Calzavara’s written consent.
8.5. The Supplier guarantees that the Goods are not produced in breach of third parties’ intellectual and industrial property rights. Should Calzavara be subject to claims before the Court relating to the breach of patent rights on the subject-matter of the order, the Supplier will be bound to appear before the Court, releasing Calzavara from any further consequences, including relating to property.
- OCCUPATIONAL SAFETY AND CODE OF ETHICS
9.1. The Supplier shall comply with the general state of the art and of science, with applicable regulations, with safety rules and with relevant measures. The Parties also undertake to comply with the provisions on occupational health and safety, including those under Italian Leg. Decree no. 81/2008, in consideration of the fact that the Supplier may enter Calzavara’s company premises.
9.2. Furthermore, the Supplier acknowledges that it has read and is familiar with Calzavara’s Code of Ethics (published on www.calzavara.it) and that it has raised awareness among its employees and outside staff of the issues referred to in the Code of Ethics and of the conduct sanctioned by Italian Leg. Decree 231/01.
9.3. In the event that any of the Supplier’s Directors, employees or outside staff fail to comply with any occupational health and safety provision, with any rule of the Code of Ethics pertaining to the activity covered by the supply or with the regulations on the liability of legal persons pursuant to Italian Leg. Decree 231/2001, as confirmed by a judgment and/or order and/or decree of the competent judicial authorities, the contract will be terminated with immediate effect, in accordance with and for the purposes of art. 1456 of the Italian Civil Code, without prejudice to any damages caused to Calzavara.
- TRANSFER OF OWNERSHIP AND TRANSFER OF RISK
10.1. Unless otherwise agreed in writing by the Parties, the transfer of ownership, by way of derogation from the provisions of art. 1510, para. 2 of the Italian Civil Code, shall take place after inspection of the Goods by Calzavara, which will be carried out within 5 (five) working days of delivery of the Goods at Calzavara’s premises or at the place of destination otherwise agreed upon between the Parties.
10.2 The above inspection implies the mere control of defects that are clearly recognisable at first glance and does not affect any right or entitlement of Calzavara with regard to hidden defects.
- PRICES
11.1. The prices are those specified in the PO (hereinafter the “Prices”). Unless otherwise agreed in writing between the Parties, upon acceptance of the order by the Supplier, the Prices cannot be changed, reviewed or adjusted by the Supplier and are deemed to include all additional costs, including packaging and shipping.
11.2. In the event that the Supplier is required to install or commission the goods and services covered by the contract, the Supplier will bear all related indirect costs, including but not limited to, travel and transport costs, as well as the provision of equipment and reimbursement of expenses, unless otherwise agreed upon in writing between the Parties.
- INVOICING
12.1. The Supplier will issue the invoice in compliance with the instructions provided in the PO and subject to prior written authorisation by Calzavara. The invoice shall include the PO references, the amount and description of the Goods and/or services supplied, the date and reference number shown on the shipping document and the detailed price. It shall also be accompanied by the necessary supporting documentation.
12.2. Invoices that do not comply with the contractual conditions defined in the PO and in the General Conditions will be considered null and void and sent back to the Supplier.
- PAYMENTS
13.1. Unless otherwise agreed in writing between the Parties and stated in the PO, all payments shall be made by bank transfer no later than 90 (ninety) days after the date of issue of the invoice.
- PROHIBITION ON ASSIGNMENT OF RECEIVABLES
14.1 Unless otherwise agreed between the Parties, pursuant to art. 1260, second paragraph of the Italian Civil Code, the assignment of all the receivables due to the Supplier for the supply of the Goods is not permitted.
- WARRANTY AGAINST DEFECTS
15.1. The Supplier is liable vis-à-vis Calzavara for any defect or fault (hereinafter “Non-conformity”) of the Goods at the time of delivery and for a period of 12 months from the day after delivery.
15.2 The Supplier guarantees the Goods against Non-conformities in relation to the specific features of the supply, of the contract and of the service rendered, as set forth in the PO.
15.3. The Parties acknowledge that the deadline within which Calzavara shall report any defects to the Supplier is 45 (forty-five) working days from their discovery and that the
limitation period for action to enforce the warranty is 3 years from delivery of the Goods.
15.4. The Parties agree that in the event of a claim of Non-conformity by Calzavara, Calzavara may suspend payment of the Price until the grounds for bringing the claim have been legally recognised by way of a final judgment, and that, on the contrary, the Supplier may not take action to recover the receivable, and no interest will accrue on the receivable, including the interest under Italian Leg. Decree No. 231/2002.
15.5. In the event of Non-conformity, Calzavara has the right to bring the Goods into conformity, free of charge, either by repairing or replacing them, or to reduce the price accordingly and/or terminate the contract.
15.6. Calzavara may choose to ask the Supplier either to repair and/or replace the Goods, free of charge in both cases, unless the requested remedy is objectively impossible or unreasonably expensive. The Good shall be repaired or replaced within a reasonable time of the request being made, taking into account the nature of the Goods. If the Supplier fails to repair and/or replace the Goods within a reasonable time, Calzavara may choose to request an appropriate price reduction or to terminate the contract. This is without prejudice to Calzavara’s right to claim compensation for damages.
15.7. Any delays in the performance of the warranty lead to the Supplier’s liability and to Calzavara’s entitlement to obtain compensation for the relevant damages.
15.8. Where necessary to avoid imminent risks or prevent greater damages, Calzavara may take any action, directly and/or through third parties, to eliminate the defects and non-conformities, charging the costs to the Supplier.
- CONFIDENTIALITY
16.1. The Parties acknowledge that most of the documents and information exchanged, including orally, under the supply contract are intrinsically confidential and, for this reason, will be used and processed exclusively for the purposes and as per the methods laid down in the PO and in these General Conditions. The Parties are also aware that failure to apply the rules for safeguarding and processing information set out herein may cause serious damage to development of the activity and may undermine the feasibility and success of the agreement.
16.2. The Supplier will keep confidential all the data, information, documentation and news that will be brought to its knowledge in relation to the performance of the services covered by the PO. In this specific regard, the Supplier assumes the obligation directly and, with regard to its employees and outside staff, also pursuant to art. 1381 of the Italian Civil Code.
16.3. Unless otherwise agreed in writing, the Supplier has the duty to keep confidential all the ideas and technical information that have been brought to its knowledge and that are instrumental in supplying the Goods, even if developed by the Supplier.
16.4. Breach of confidentiality obligations that is likely to cause serious and irreparable damage to Calzavara shall be reason for termination of the contract pursuant to art. 1456 of the Italian Civil Code.
16.5. Without prejudice to all legal and regulatory obligations, for the entire term of the supply and for 5 (five) years after the Delivery Date, the Supplier undertakes (directly and with regard to its outside staff, also pursuant to art. 1381 of the Italian Civil Code) (i) not to reproduce or extract copies of confidential information and data, in any form and by any means, (ii) not to disclose, disseminate and/or communicate to third parties and/or make available to the public confidential information and data and any documentation, whether in written or electronic form, as well as all intrinsically confidential verbal information, unless previously agreed between the Parties.
16.6. The Parties undertake to bring the information received and considered strictly confidential to the knowledge only of the direct counterparts necessarily involved in the negotiations to define the technical and business agreements for the purpose of performing the PO. The Parties will be liable for any breach of the confidentiality rules set out herein also with regard to their own personnel pursuant to art. 1381 of the Italian Civil Code.
- PERSONAL DATA PROCESSING PURSUANT TO ITALIAN LEG. DECREE NO. 196/2003 AND REGULATION 679/2016.
17.1. Pursuant to Italian Leg. Decree No. 196 of 30 June 2003, as subsequently amended, and pursuant to Regulation 679/2016, the Parties mutually authorise one another to process their personal data in order to perform the supply. Specifically, the Parties certify that they have been informed about: a) the purposes and methods of the processing for which the data is intended; b) the compulsory or optional nature of providing data; c) the consequences if they refuse to reply; d) the persons or categories of persons to whom the data may be disclosed and the scope of dissemination of such data; e) the rights under art. 7 of Italian Leg. Decree 196/03; f) the name, business name or corporate name and the domicile, residence or headquarters of the data controller.
17.2. The Parties agree that the data relating to the performance of the contractual relationship will be recorded and disclosed not only to persons having the right to access such data according to the provisions of law or secondary regulatory provisions, but also to persons for whom such disclosure is necessary, useful and instrumental in carrying out the activities under the PO and these General Conditions.
17.3. The personal data provided by the Parties will not be disseminated to the public.
- LIABILITY AND INSURANCE
18.1. The Supplier is liable vis-à-vis Calzavara and any third party for any direct and/or indirect damage caused to persons, objects and property or any other material damage, loss or prejudice, caused by failure to comply with or incorrect compliance with the obligations under the PO and these General Conditions and in any case by the operation of the Goods covered by the supply, and shall be liable to pay compensation for the relevant damages.
18.2. The PO may require the Supplier to take out suitable insurance policies to cover any liability that may arise for direct and indirect damages suffered by Calzavara and/or third parties in relation to the supply. Nevertheless, the Supplier undertakes to hold Calzavara harmless and indemnify it against such damages and liabilities, which may also arise from: i) any delivery delays, ii) defects, damages and further damage occurring during the transport of the products supplied, iii) damages resulting from repairs, changes, alterations, tampering and sabotage or operational errors on/to the products and/or systems not authorised by Calzavara.
- WITHDRAWAL AND EXPRESS TERMINATION CLAUSE
19.1. In the event of breach by the Supplier of any of the obligations referred to in the PO and these General Conditions, Calzavara has the right to terminate the supply contract with immediate effect, in accordance with and for the purposes of art. 1456 of the Italian Civil Code, subject to prior written notice to be sent by registered mail with recorded delivery or by CEM.
19.2. Furthermore, should the Supplier be in a situation of insolvency, even if not legally recognised, or be subject to bankruptcy proceedings, arrangement with creditors or any other insolvency proceedings, the PO and relevant supply contract will be terminated by law, pursuant to art. 1456 of the Italian Civil Code.
19.3. Each Party may withdraw from the supply contract at any time and for any reason by giving prior notice to the other Party, by registered mail with recorded delivery and/or CEM, at least 30 (thirty) days prior to termination of the contract.
- GOVERNING LAW AND JURISDICTION
20.1. The POs and these General Conditions are governed exclusively by Italian law.
20.2. Should any dispute arise between the Parties in relation to the PO or these General Conditions or with reference thereto, each party will inform the other party by e-mail or CEM about its reasons for the dispute, specifying the nature, the subject-matter and any possible alternative solution, in order to attempt to reach an amicable settlement.
20.3. The Court of Udine will have exclusive jurisdiction to settle any dispute that may arise between the Parties concerning the interpretation and/or execution and/or termination of the supply relations, of the POs and of these General Conditions, with the express exclusion of any other competing or alternative jurisdiction.
- MISCELLANEOUS
21.1. Should one or more of the contractual provisions set out in these General Conditions (also since combined with the PO clauses) prove to be contrary to mandatory provisions of law, or are however declared null and void or are annulled, or prove to be impossible, the remaining provisions will continue to be valid for the purpose of maintaining the contract.
21.2. In such cases, the Parties undertake to replace, by means of a specific written document, the provisions that are contrary to the law or, in any case, have been declared null and void or impossible, with other provisions that allow an agreement having a content that is as close as possible to the Parties’ original covenants, to be reached.
In accordance with and for the purposes of articles 1340 and 1341 of the Italian Civil Code, the Supplier declares that it has viewed, discussed, read and understood and that it has expressly approved the following clauses set forth in the General Conditions of the contract: art. 3 (Performance of supply), art. 4 (Method of delivery), art. 5 (Delivery terms), art. 6 (Installation and returns) art. 8 (Intellectual and industrial property), art. 9 (Occupational safety and Code of Ethics), art. 14 (Prohibition on assignment of receivables), art. 15 (Warranty against defects), art. 16 (Confidentiality), art. 17 (Personal data processing), art. 18 (Liability and insurance), art. 19 (Withdrawal and express termination clause), 20 (Governing law and jurisdiction).
