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1) DEFINITIONS.
“Buyer” means any entity which issued a Purchase Order to the Seller (Buyer is also hereinafter referred to as a “Party”).
“Parties” means collectively the Seller and the Buyer.
“Products” means Seller’s products identified in the relevant Purchase Order accepted by Seller.
“Purchase Order” means the relevant purchase order issued by Buyer to the Seller.
“Seller” means Bonfiglioli S.p.A. and any of its direct and indirect subsidiary companies and affiliates which accept a Purchase Order (Seller is also hereinafter referred to as a “Party”).
“Warranty Period” means, unless otherwise agreed in writing between the Parties, the warranty period which starts from the Products delivery date and expires 12 (twelve) months after the same.
2) SCOPE OF APPLICATION.
a) These general terms and conditions of sale (the “Terms and Conditions”) are the only terms which govern the sale of Products by Seller to Buyer based on Purchase Orders issued by the Buyer.
b) The Purchase Order issued by the Buyer to the Seller constitutes a binding proposal by the Buyer to purchase Products in accordance with these Terms and Conditions.
c) The Purchase Order shall only be deemed to be accepted when Seller issues the written acceptance of the Purchase Order, in absence of which Purchase Order shall be deemed accepted upon delivery of the Products to the Buyer by the Seller (the “Accepted Purchase Order”).
d) These Terms and Conditions prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when the Buyer has submitted its Purchase Order or such terms.
e) Acceptance by the Seller of the Purchase Order does not constitute acceptance by Seller of any of Buyer's terms and conditions and does not serve to modify or amend these Terms and Conditions.
f) If a written contract signed by both Parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms and Conditions.
g) The Accepted Purchase Order and these Terms and Conditions (collectively, the “Agreement”) comprise the entire agreement between the Parties, and supersede all prior understandings, agreements, negotiations, and communications, both written and oral.
3) SHIPMENT, DELIVERY, TITLE AND RISK OF LOSS.
a) Subject to Buyer’s compliance of Section 4 and Section 5 of these Terms and Conditions, Seller shall deliver the Products to the delivery location in accordance with the Incoterms clause agreed in writing between the Parties in the applicable Accepted Purchase Order. If modifications to the Products to be delivered are agreed after the Purchase Order has been accepted by the Seller, the delivery date shall be extended accordingly.
b) Title to Products passes to Buyer upon full payment of the Price for such Products by Buyer.
c) Risk of loss to Products passes to Buyer in accordance with the agreed Incoterms clause.
4) PRICE AND PAYMENT.
a) Buyer shall purchase the Products from Seller at the price (“Price”) set forth in the Accepted Purchase Order.
b) Any additional costs incurred by Seller in connection with the delivery, which are not covered by the agreed Incoterms clause, including, but not limited to, inspection costs, consulate or certification fees, shall be borne by Buyer.
c) The Price is exclusive of all sales and/or use taxes, and any other similar taxes, duties and charges of any kind.
d) If modifications to the Products to be delivered are agreed after the Purchase Order has been accepted, Seller shall have the right to unilaterally adjust the Price accordingly.
e) During the performance of the Agreement, in the event of an increase in production costs (including, but not limited to, raw material costs and/or energy costs), due to circumstances beyond Seller’s control, the Seller will have the right to increase the Price of the Products to reflect the above-mentioned increase and with immediate effect, with prior written notice to the Buyer.
f) Buyer shall pay to Seller all invoiced amounts according to payment terms set forth in the Accepted Purchase Order.
g) Any payment shall be deemed to have been made only when Seller can dispose of the payments without reservation. Late payments shall be subject to interests at the rate of 5.33% per annum from the due date of payment until the actual date of payment (whether before or after judgement) without prejudice to any other rights of the Seller.
h) Buyer expressly waives its right to set-off, counterclaim, deduct or withhold any amount due to the same by Seller with any amount due by Buyer to Seller.
5) OTHER BUYER’S OBLIGATIONS.
a) With respect to the Products, Buyer shall: (i) cooperate with Seller in all matters relating to the Products and provide such access to Buyer’s premises, and such other facilities as may reasonably be requested by Seller, for the purposes of performing its obligations under the Agreement, (ii) respond promptly to any Seller’s request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform its obligations under the Agreement, (iii) provide promptly such Buyer’s materials or information (including but not limited to test materials free of charge and all technical specifications required for development of the Products) as Seller may reasonably request to perform its obligations under the Agreement, in a timely manner and ensure that such Buyer’s materials or information are complete and accurate in all respects, (iv) at its own expense, maintain and carry in full force and effect a proper commercial general liability (including product liability) with financially sound and reputable insurers, and upon Seller’s request, shall provide Seller with a certificate of insurance evidencing such insurance coverage, and (v) obtain and maintain all necessary licenses and consents to execute its own obligations under the Agreement.
6) PRODUCT WARRANTY.
a) Seller warrants to Buyer that, during Warranty Period, each Product will be free from significant defects in design and workmanship (“Product Warranty”).
b) The Product Warranty does not apply to any Product that: (i) has been subjected to abuse, misuse, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller, or (ii) has been reconstructed, repaired or altered by any persons or entities other than Seller or its authorized representatives, or (iii) has been used with any third-party products that has not been previously approved in writing by Seller.
c) During the Warranty Period, with respect to any allegedly defective Product: (i) Buyer shall promptly notify Seller, in writing, of any alleged defect, (ii) Buyer, at its own cost and expense, shall promptly return to the Seller the allegedly defective Product, (iii) subject to the Product Warranty limitations set forth in this Section 6, if Seller's inspection and testing reveals, to Seller's reasonable satisfaction, that such Product is defective, Seller shall in its sole discretion and at its expense, repair or replace such defective Product.
d) Except for the Product Warranty set forth in this Section 6, Seller has made or makes no express or implied representation or warranty whatsoever, either oral or written, including any warranties of merchantability, fitness for a particular purpose, non-infringement of third-party Intellectual Property Rights, or performance of Products to standards specific to the country of import.
e) To the extent permitted by the applicable law and notwithstanding any other provision of the Agreement, this Section 6 contains Buyer's exclusive remedy for defective Products. Buyer's remedy under this Section 6 is conditioned upon Buyer's compliance with its obligation to promptly notify Seller, in writing, of any alleged defects and with its payment obligations related to said defective Products.
7) TERMINATION EVENTS.
a) Without prejudice to Seller’s right to claim for further damages, Seller may at any time terminate the Agreement effective immediately: (i) if Buyer fails to pay any amount when due under the Agreement, (ii) if Buyer has an order made or resolution passed for its winding up, has a receiver appointed whether compulsorily or voluntarily or becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law other than (A) any proceedings as defined in Section 440(6) of the Insolvency, Restructuring and Dissolution Act 2018 (No. 40 of 2018) of Singapore; or (B) any other process which under any law with a similar purpose may give rise to a stay on, or prevention of, the exercise of contractual rights of termination, (iii) if a change in control of Buyer occurs, (iv) if Buyer is in breach of any provision of the Agreement due to a Force Majeure Event for a continuous period exceeding 30 (thirty) days. For the purposes of this clause, “change in control” of Buyer shall mean the occurrence of any of the following events: (i) the acquisition by any person in any manner, of the ability to elect, or to control the election, of a majority of the directors of the Buyer; (ii) an acquisition of the Buyer by another entity by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger or consolidation), or (iii) a sale of all or substantially all of the assets of the Buyer ((ii) and (iii) collectively referred to as a “Merger”), so long as in either case the Buyer’s shareholders immediately prior to such Merger will, immediately after such Merger, hold less than fifty percent (50%) of the voting power of the surviving or acquiring entity.
b) Seller shall not be liable to Buyer for any damage of any kind (whether direct or indirect) incurred by Buyer by reason of the expiration or termination of the Agreement.
c) Expiration or termination of the Agreement will not constitute a waiver of Seller's rights, remedies or defenses under the Agreement, at law, or otherwise.
8) LIMITATION OF LIABILITY.
a) In no event shall each Party be liable for consequential or indirect damages (including but not limited to any loss arising from a Party’s business delay and/or stoppage of activities, loss of chances, reputational damages and/or damages to company’s brand image).
b) In no event shall each Party's aggregate liability for direct damages exceed the amount of the relevant Accepted Purchase Order giving rise to the alleged liability.
c) The limitations of liability set forth in this Section 8 shall not apply to liability resulting from the Parties’ gross negligence or willful misconduct, and death or bodily injury resulting from the Parties’ acts or omissions.
9) INTELLECTUAL PROPERTY.
a) The Buyer acknowledges and agrees that: (i) any and all Intellectual Property Rights owned by or licensed to the Seller are the sole and exclusive property of the Seller or its licensors, (ii) it shall not acquire any ownership interest in any of the Seller’s or its licensors Intellectual Property Rights under the Agreement.
b) For the purpose of these Terms and Conditions “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) utility or design patents, (ii) trademarks, (iii) internet domain names, (iv) designs, (v) software and firmware, and (vi) trade secrets, business and technical information and know-how.
10) CONFIDENTIALITY.
a) Each Party (as the “Disclosing Party”) may disclose to the other Party (as the “Receiving Party”) information about its business affairs, products and services, forecasts, confidential information and materials and other sensitive or proprietary information including those comprising or relating to Intellectual Property Rights. Such information, as well as the terms of the Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, are collectively referred to as “Confidential Information” hereunder.
Notwithstanding the foregoing, Confidential Information does not include information that: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of the Agreement by the Receiving Party, or (ii) is required to be disclosed pursuant to applicable laws and regulations.
b) The Receiving Party shall, for 3 (three) years from disclosure of such Confidential Information: (i) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information, (ii) not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights or perform its obligations under the Agreement, (iii) not disclose any such Confidential Information to any third party.
11) FORCE MAJEURE.
a) No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement (except for any obligations to make payments to the other Party), when and to the extent such failure or delay is caused by or results from events beyond the control of the impacted Party included but not limited to: (i) acts of God, (ii) flood, fire, earthquake or explosion, (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, (iv) action by any governmental authority, (v) national or regional emergency, even in case of epidemics, pandemics, outbreaks (vi) strikes, labor stoppages or slowdowns or other industrial disturbances, (vii) shortage of adequate power or transportation facilities, and (viii) actions, embargoes or blockades in effect on or after the date of the Agreement (“Force Majeure Events”).
b) The impacted Party shall give to the other Party prompt written notice of the occurrence of any Force Majeure Event. The impacted Party shall use all reasonable efforts to remedy its inability to perform and to mitigate the effects of the Force Majeure Event.
12) BUYER’S ACTS OR OMISSIONS.
a) If Seller’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
13) MISCELLANEOUS.
a) Seller and Buyer are independent contracting parties. Nothing in the Agreement creates any agency, joint venture, partnership or other form of joint enterprise relationship between the Parties. Neither Party has any right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
b) If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of the Agreement.
c) No amendment of the Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
d) No waiver by each Party of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by such Party.
e) Buyer may not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller.
f) Buyer undertakes to perform its own obligations under the Agreement in compliance with any and all applicable laws (including - in relation to any subsequent resale and/or handling of the Products - the European and international legislation on subjective/objective restrictions, embargoes and dual-use) and with “Bonfiglioli Group Code of Ethics” available on website www.bonfiglioli.it, that Buyer declares to have read, understood and accepted.
14) APPLICABLE LAW AND JURISDICTION.
a) The Agreement shall be exclusively governed by and construed in accordance with the laws of the Republic of Singapore (however expressly excluding in full the United Nations’ Convention on the International Sales of Goods “CISG”).
b) The Singapore courts shall have exclusive jurisdiction for any dispute or claim arising from the Agreement.