GSR TECHNOLOGY ITALY SRL GENERAL PURCHASING TERMS AND CONDITIONS
1. DEFINITIONS AND CONSTRUCTION
1.1 In this document, the following terms will have the following meanings:
“GSR”: GSR Technology Italy S.r.l.
“Goods”: the items to be delivered by the Supplier in conformity with the Agreement and/or all materials, documents or anything that represents the product of the Services provided by the Supplier according to the respective Agreement in any form and by any means, including, by way of example only, but not limited to, data, diagrams, drawings, reports and specifications;
“Customer”: GSR, that is the party that orders the Goods and/or Services from the Supplier;
“GSR General Conditions”: these GSR General Conditions for the purchase of Goods and/or Services;
“Delivery”: delivery of the Goods by the Supplier in conformity with Clause 5.1;
“Agreement”: an agreement in writing and/or the Order for the purchase of Goods and/or Services placed by the Customer to the Supplier, including any other document transmitted by the Customer that is intended to become a part of such order, like, by way of example only, any specification (which will include any of the Supplier’s specifications that the Customer accepts to use or on the basis of which the Customer places an Order);
“Subsidiary”: means any company that directly or indirectly controls, is controlled by, or is under the common control of one Party;
“Customer Data”: data and information, including Personal Data, acquired by the Supplier in the preparation or during the execution of the Agreement, regardless of whether such data or information regard the Customer, its Subsidiaries or their Customers or suppliers;
“Personal Data”: means any data or information about an identified or identifiable individual;
“Intellectual Property Rights”: (a) patents, utility models, copyrights, rights on databanks and brands, trademarks, industrial designs, know-how and proposed inventions; (b) applications for patents or applications originating therefrom, like, for example only, but not limited to, divisional, continuation, continuation in part, reissue, confirmations, renewals, extensions; and (c) all other Intellectual Property Rights or similar form of global protection;
“Supplier”: the party that supplies the Goods and/or Services to the Customer (or to one of the Customer Subsidiary to the relevant Delivery Place;
“Delivery Place”: the Customer’s warehouse, factory or other premises indicated for the material Delivery of the Goods and/or Services, which may be also the premises of one of the Customer’s Subsidiaries or third-party carriers or logistics suppliers, or, should no place be indicated, the Customer’s headquarters);
“Order”: the Customer’s Order issued to the Supplier for the purchase of Goods and/or Services, including any electronic purchase order;
“Party”: the Customer or the Supplier and together the “Parties”;
“Services”: the services to be provided by the Supplier in conformity with the Agreement;
“Integrated Software”: the software necessary for the operation of the Goods and integrated and supplied as an integral part of the Goods;
“Change of Order”: a change to the Order that changes, modifies, omits, adds or otherwise amends the Order or parts thereof;
1.2 Any reference to clauses here mentioned is to clauses of the GSR General Conditions;
1.3 The titles of the clauses are included for convenience’s sake only and do not affect the construction of the GSR General Conditions.
2. ENFORCEMENT OF THE CONDITIONS
2.1 The GSR General Conditions shall regulate the Agreement.
2.2 None of the conditions delivered with, or contained in, the Supplier’s offers, confirmations or acceptances, specifications or similar documents shall be part of the Agreement, and the Supplier waives any right it may have to enforce such conditions.
2.3 The Agreement shall be understood as closed at these terms and conditions, or with an explicit acceptance in writing, or implicitly with the execution of the Order by the Supplier, whether in full or in part.
2.4 Any change to the Agreement shall be agreed in advance by the Parties.
3. SUPPLIER’S RESPONSIBILITIES
3.1 The Supplier shall deliver the Goods and provide the Services:
- in conformity with the applicable laws and regulations;
- in conformity with the Agreement (also providing all the necessary documentation) and the Customer’s instructions;
- free from vices and/or defects and not burdened with third parties’ rights;
- suitable for particular purposes as specified in the Agreement or, in their default, suitable for the purposes for which such Goods and/or Services would be normally used.
3.2 The Supplier shall ensure to pack the Goods according to the industry standards and any applicable law or regulation, in a suitable way as to preserve and protect the Goods and sufficient to carry out the unloading and inspection in safe conditions at the relevant Delivery Place.
3.3 If GSR (or the Customer Subsidiary at the relevant Delivery Place) find out nonconformity issues in connection with the supply, it shall notify the Supplier. In spite of any other remedy available to the Customer according to the Agreement, GSR can invite the Supplier to carry out, at the Supplier’s care and expense, an analysis on the causes of the quality-related issues; the results of such analysis shall be notified to the Customer with a specific report in writing within and not later than 10 (ten) calendar days after the notification date of the nonconformities found. In any case, GSR shall have the power to carry out its own checks.
3.4 GSR has the right to make changes to the Supplier’s Order and the Supplier shall make such Order changes. Should an Order Change affects either the costs or the delivery time of the Goods or Services, the Parties shall agree on an adjustment of the price and delivery terms.
3.5 The Supplier shall in no way and for no reason whatsoever stop the Delivery of Goods and/or the provision of Services.
3.6 The Supplier shall take full and exclusive responsibility for any injury and/or accident and/or occupational disease that may occur to its employees, agents, professionals, sub-suppliers or subcontractors in connection with the supply of Goods and/or Services.
3.7 The Supplier is the only responsible for claims and/or legal actions started by its employees and/or subcontractors and with no limitation whatsoever shall defend, indemnify and hold GSR (and any Customer Subsidiary) harmless from claims, proceedings, legal actions, fines, losses, costs, damages, and expenses arising from or in connection with, claims and/or legal actions, and non-compliance with laws, rules, codes of ethics, stances and other requirements of any government or government department involved that are applicable to the Supplier, its employees or subcontractors. The Supplier shall commit itself to appear in court, if so required by the Customer, at its expense, acknowledging its position as the one and only employer, and to provide the Customer (and/or any relevant Customer Subsidiary) with all documentation and information required in order to guarantee an appropriate legal protection of the Customer or its Subsidiaries in court.
3.8 The Customer shall be authorized to make the payments due to the Supplier’s employees or subcontractors that supply the Goods and/or the Services according to the Agreement, or ensure that such payments are made, in order for the terms and conditions of the supply to be complied with and their delivery be guaranteed, and also to prevent legal actions, privileges or charges. Such payments, then, shall be deducted/offset with any credits with the Supplier and be fully valid to discharge in full or in part the payment obligations with the Supplier.
4. PAYMENTS, INVOICING
4.1 The Customer, against the Goods delivered and/or the Services provided by the Supplier in conformity with the Agreement, shall pay to the Supplier the purchasing price indicated in the Agreement, provided that the invoice complies with the requirements established by the Customer. The payment shall be made in the country where the Supplier’s registered office is located, to a bank account opened in the Supplier’s name. The price shall include any tax and duty (other than VAT or equivalent) and all production, manufacturing, storage and packing (including the return of any returnable packaging) costs of any Goods.
4.2 The Supplier shall present invoices in a verifiable format, in compliance with the applicable rules, the generally accepted accounting principles and the Customer’s specific requirements, containing the following basic information: Supplier’s name, address and contact person, including the contact data; date of invoice; number of invoice; Order number and Supplier code; Customer address; quantities; specification of the Goods and/or Services; price (total amount invoiced); currency; amount of taxes or VAT; tax code or VAT position number; customs number and/or other identification code of the authorized economic Operator and/or Authorization of the authorized Exporter, if applicable; payment terms. The Supplier shall indicate the Order number on all invoices (particularly commercial invoices, pro-forma invoices and customs invoices).
4.3 Invoices shall be sent to the invoicing address specified in the Agreement (or as agreed otherwise with the Customer).
4.4 The Customer shall pay the invoice according to the payment terms agreed in the Agreement.
4.5 The Customer shall refund expenses only at cost and for what has been agreed in writing.
4.6 The Services invoiced based on hourly fees shall require the Customer’s confirmation in writing of the Supplier’s time sheet. The Supplier shall send such time sheets to the Customer for approval according to the Customer’s instructions, but with the relevant invoice at the latest. The approval of the time sheet shall be not understood as an acknowledgment of any request. The Customer shall be not obliged to pay invoices based on time sheets that have been not approved by the Customer in writing.
4.7 The Customer shall reserve the right to offset or withhold the payment in case of Goods and/or Services not provided in conformity with the Agreement.
5. DELIVERY, PROVISION OF SERVICES
5.1 Subject to specific agreements otherwise agreed in each supply Agreement, the Goods shall be delivered to the Delivery Place according to the INCOTERMS 2020 - D.D.P. (Delivered Duty Paid).
5.2 The Services shall be provided at the Delivery Place.
5.3 The Supplier shall notify, not later than on the acceptance of the Agreement, the following information: the number of parcels and their content, the customs tariffs of the delivery country, and the countries of origin of all Goods. For Goods subject to control, the relevant national export control codes and, if the Goods and/or Services are subject to the USA export rules, the USA Export Control Classification Numbers (ECCN) or the classification numbers of the International Traffic in Arms Regulations (ITAR) shall be indicated. Evidence of the preferential origin as well as the declarations of conformity and the marks of the delivery or destination place shall be presented without need for request; the certificates of origin upon request.
5.4 The Goods shall be delivered, and the Services shall be provided, during the Customer’s standard business hours (or during the hours in force in the Delivery Place), unless requested otherwise by the Customer.
5.5 Upon Delivery, the Supplier (or the shipping and forwarding agent assigned by the Supplier) shall provide the Customer (or, if so requested, by the Customer appointed Subsidiary, at the Delivery Place) with a waybill and all necessary export and import documents not indicated under Clause 5.3. If the Customer has approved partial delivery, this waybill shall include also the items still to be delivered.
5.6 The ownership of the Goods shall be transferred to the Customer upon delivery. However, should the Goods contain an Integrated Software, the property of this Integrated Software shall be not transferred to the Customer, but the Supplier shall grant or, should it be applicable, the third-party owner shall grant the Customer and all users an irrevocable, perpetual, transferable, nonexclusive, royalty-free worldwide right to use the Integrated Software as an integral part of such Goods or to the service thereof. To avoid misunderstandings, the Supplier shall have no right to reserve the title, and the Supplier shall give a valid title on the Goods, free of burdens or liens (but the transfer of the title and property on the Goods to the Customer shall not release the Customer from its obligation of paying for such Goods, in conformity with the terms of the Agreement).
6. ACCEPTANCE
6.1 The delivery of the Goods or the provision of the Services shall be not held as the acceptance of such Goods or Services by the Customer. The Customer (or the Customer appointed Subsidiary at the Delivery Place) shall have a reasonable time to check these Goods and/or Services and report any defect to the Supplier. If the defect in the Goods and/or Services was not reasonably detectable during inspection, the Customer (or the Customer appointed Subsidiary at the Delivery Place) shall have a reasonable time to notify this defect after this defect has become evident or to refuse the Goods and/or Services.
6.2 The Parties can agree on a specific procedure for acceptance: in this case, the acceptance shall be subject to the Customer’s declaration in writing (or the declaration of the Customer appointed Subsidiary) within a reasonable period of time in advance when the Goods and/or Services will be ready for inspection, test or acceptance.
6.3 The Customer may use any of the remedies provided for in the Agreement for each one of the refused Goods or Services.
7. LATE DELIVERY
The Supplier shall deliver the Goods according to the dates or times, and at least according to the delivery times, specified in the Agreement. Should the delivery of the Goods or the provision of the Services not comply with the agreed delivery date(s), the Customer can:
7.1 terminate the Agreement, in full or in part;
7.2 refuse subsequent deliveries of the Goods or provision of Services;
7.3 recover from the Supplier any expenses reasonably incurred by the Customer (or by any of the Customer’s affected Subsidiary) to get the alternative Goods and/or Services from another supplier;
7.4 ask for the refund of damages for any costs, expenses and penalties incurred by the Customer (or by any of the Customer’s affected Subsidiary) that are attributable to the delay of the Supplier;
7.5 ask for a 0,02 percent penalty of the Agreement value per day of delay. In any case, this is subject to any greater damage. GSR shall have the power to ask for one of the remedies indicated. In any case, it shall remain the relief of the costs or damages (points 7.3 and 7.4).
8. GUARANTEE AND REMEDIES
8.1 The Supplier guarantees that the Goods and/or Services comply with the Agreement, including, with no limitation whatsoever, the Supplier’s responsibilities as defined under Clause 3.1.
8.2 The Supplier guarantees that the Goods are new and have been not used before the delivery date and are free from defects during the period of guarantee.
8.3 The period of guarantee is twelve (12) months after delivery, or as provided for otherwise in every specific Agreement.
8.4 In case of infringement of the guarantee obligations, which have not been remedied within ninety-six (96) hours after the receipt of a notice from the Customer, or in case of infringement of any other obligation of the Agreement, the Customer shall have the right to one or all of the remedies listed below at its discretion and at the Supplier’s expense:
8.4.1 to grant the Supplier an opportunity to carry out any other work necessary for the terms of the Agreement to be complied with and/or to obtain prompt repair or replacement of the defective Goods and/or service;
8.4.2 to ask the Supplier to repair promptly or replace defective Goods and/or Services;
8.4.3 to refuse additional Goods and/or Services;
8.4.4 to ask the Supplier to indemnify and hold the Customer (and any other relevant Subsidiary of the Customer) harmless from such damages that may have been suffered by the Customer (and by any Customer Subsidiary) as the result of the infringement of the Agreement by the Supplier;
8.4.5 to terminate the Agreement, and in this case:
8.4.5.1 the Customer shall have no obligation to indemnify the Supplier (including the payment of the Goods and/or Services that may have been refused); and
8.4.5.2 the Supplier, at the Customer’s option, shall be obliged to return to the Customer the payments received from the Customer for the Goods and/or Services and to get back the Goods at its own expense and risk; and
8.4.5.3 the Customer may take in replacement goods and/or services from an alternative supplier (any incremental cost so incurred shall be at the Supplier’s expense).
8.5 In case of infringement of any guarantee whatsoever, the entire period of guarantee shall restart from scratch for the defective Goods/Service from the date on which the remedy has been completed to the Customer’s satisfaction.
8.6 The rights and remedies available to the Customer and contained in the Agreement are cumulative and do not exclude any other rights or remedies provided for by the law.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Apart from the provisions in Clause 9.2, the Supplier shall grant the Customer and the Customer Subsidiaries, or undertakes to have the Customer and the Customer Subsidiaries be granted, an irrevocable, perpetual, transferable, nonexclusive, royalty-free worldwide license for the use of the Intellectual Property Rights on the Goods, including any Integrated Software.
9.2 The Supplier shall transfer to the Customer (or shall transfer to the Customer appointed Subsidiary) the full title to any of the Intellectual Property Rights on the Goods resulting from the Services. Additionally, the Supplier agrees, on the Customer’s request and at its own expense, to carry out all that is necessary in order to execute the Customer’s (or the Customer appointed Subsidiary) title on the Intellectual Property or to register the Customer as the owner of the Intellectual Property Rights.
9.3 The Intellectual Property Rights on the Goods created or licensed to the Supplier before or out of the Agreement (“Pre-Existing Intellectual Property Rights”) shall remain property of the Supplier and the relevant third-party owners. To the extent that the Pre-Existing Intellectual Property Rights are integrated in the Goods resulting from the Services, the Supplier shall grant, or undertake to have the third-party owner grant, the Customer and its Subsidiaries an irrevocable, perpetual, transferable, nonexclusive, royalty-free worldwide license for the use of the Pre-Existing Intellectual Property Rights as part of these Goods, including the right to improve, develop, market, distribute, sublicense or otherwise use the Pre-Existing Intellectual Property Rights.
9.4 The Supplier shall specify in writing and before Delivery all the open source software implemented or used by the Integrated Software and ask for the Customer’s consent in writing. The Supplier agrees to replace every open source software component that has been refused by the Customer with a software of at least the same quality and functionality.
9.5 In case of complaint against the Customer (or any Customer Subsidiary whatsoever) about the Goods and Services infringing third parties’ Intellectual Property Rights, the Supplier shall, at its own expense, but at the Customer’s discretion, (i) provide the Customer, the Customer Subsidiaries, the Customer’s customers, as the case may be, with the right to go on using the Goods and/or Services; (ii) modify the Goods and/or Services in such a way as they stop being an infringement; or (iii) replace the Goods and/or Services with equivalents that do not infringe any right. Otherwise, the Customer or any Customer Subsidiary, shall have the right to terminate the Agreement and ask for the refund of all the amounts that have been paid to the Supplier pursuant to the Agreement.
10. CONFORMITY, INTEGRITY
10.1 The Supplier shall supply the Goods and/or Services in conformity with all applicable laws, regulations, codes of conduct.
10.2 The Supplier and its subcontractors shall stick to the GSR List of prohibited and restricted substances and notify the Customer (and/or the Customer Subsidiary active in the Delivery Place) of the substances contained in the Goods. The Supplier shall also comply with the reporting obligations and other requirements connected with Conflict Minerals, and shall provide the Customer (or the relevant Customer Subsidiary) with the documents, certificates and declarations as required. Any declaration issued by the Supplier to the Customer (either directly or indirectly) in connection with the materials used for or in connection with the Goods and/or Services shall be held a contractual declaration.
10.3 The Supplier declares and guarantees the present and future full compliance with all applicable laws, rules, instructions and commercial policies, including, among the others, those aimed at guaranteeing the necessary customs clearance, evidence of origin, import/export licenses and exemptions, by submitting the relevant applications with the competent governmental bodies and/or providing the supplementary information on the provision of services, the release or transfer of goods, hardware, software and technology.
10.4 The Supplier declares and guarantees that no goods, material, equipment, component, part, technology, or service that is included or incorporated or otherwise supplied in connection with the Goods and/or Services originates from countries or regions that are subject to embargo from any government authority (or also “Relevant Authority”), and that the Customer holds, in its opinion, that it may issue sanctions or other measures against the Customer. Should any one of the Goods and/or Services be subject to export restrictions, it will be the Supplier’s liability to promptly notify the Customer (and any of the relevant Customer Subsidiaries) in writing of the details of such restrictions.
10.5 The Supplier declares and guarantees that it is a legal entity or individual subject to no sanctions (“Sanctioned Person”) issued by a Relevant Authority, including any person included in the Specially Designated Nationals (SDN) and Blocked Persons Lists of the United States of America. The Supplier acknowledges that the Sanctioned Persons may include persons not explicitly included in these lists, but also legal entities that are directly or indirectly controlled or owned by 50% or more by a Sanctioned Person. The Supplier declares and guarantees that no Sanctioned Person has any financial or equivalent interest in the Goods and/or Services and that the supply of these Goods and/or Services implies no transfer, payment, or any interest in the property of a Sanctioned Person.
10.6 Either Party guarantees that it will not carry out, directly or indirectly, and is not aware of that others will carry out, directly or indirectly, any payment, gratuity or will undertake other commitments with their customers, public officers or representatives, administrators and employees of one Party, or of any other party, in any way contrary to the applicable laws (including, by way of example only, but not limited to, U.S. Foreign Corrupt Practices Act, UK Bribery Act 2010 and, where applicable, the laws promulgated by the member states and signatories that have adopted the OECD Convention on Combating Bribery of Foreign Public Officials), and that will comply with all the relevant laws, regulations, orders and rules on corruption. Nothing contained in this Agreement shall result in Party or one of its Subsidiaries being obliged to refund such given or promised compensations to the other Party.
10.7 The Supplier acknowledges and confirms that it has received a copy of the GSR Code of Conduct and the Code of Conduct of GSR Suppliers or that it has been informed on how it can access the GSR Codes of Conduct on line. The Supplier agrees that it will comply with its contractual obligations according to the GSR Codes of Conduct.
10.8 The infringement of any of the obligations contained in this Clause 10 shall be considered a serious infringement of the Agreement and will entitle the other Party to terminate the Agreement right away, subject to any additional right or remedy provided for by the Agreement or the applicable law. In spite of what is provided otherwise in the Agreement, the Supplier shall, with no limit whatsoever, to indemnify and hold the Customer (and any relevant Customer Subsidiary) harmless from any liability, damage, cost or expense incurred as the result of each infringement and termination of the Agreement or arising from export restrictions that have been hidden by the Supplier.
11. CONFIDENTIALITY, SECURITY AND DATA PROTECTION
11.1 The Supplier shall be obliged to keep strictly confidential the Customer Data and any other information regarding the activity, products and/or technologies of the Customer or its Subsidiaries, that may be obtained by the Supplier in connection with the Goods and/or Services to be supplied (both before and after the acceptance of the Agreement). The Supplier shall limit the diffusion of the said reserved material to its employees, agents or subcontractors or other third parties on a need to know basis with the purpose of supplying Goods and/or Services to the Customer. The Supplier shall ensure that these employees, agents, subcontractors or other third parties are subject and stick to the same confidentiality obligations applicable to the Supplier, and shall be responsible for unauthorized disclosure.
11.2 The Supplier shall apply appropriate protections, suitable for the type of Customer Data to be protected, against the unauthorized access or disclosure of such Customer Data and protect the Customer Data in conformity with the protection standards generally accepted in the relevant industry, or in the same way and by the same standards by which it protects its confidential data and exclusive information, whichever standard will be the higher. The Supplier may disclose confidential information to Approved Supplementary Recipients (which means the Supplier’s authorized representatives, including auditors, lawyers and consultants), subject to (i) this information being disclosed on a need to know basis only, and (ii) these Approved Supplementary Recipients signing a confidentiality agreement with the Supplier, whose terms are substantially similar to those applied herein or, where applicable, being obliged to comply with the codes of professional conduct that guarantee the confidentiality of this information.
11.3 The Supplier must not (i) use the Customer Data for other purposes from the supply of Goods and/or Services, (ii) copy the Customer Data in full or in part in any form, except in case this is required by the Agreement; (iii) disclose the Customer Data to third parties, except for the Approved Supplementary Recipients or with the Customer’s previous consent in writing.
11.4 The Supplier must install and update at its expense an antivirus protection software and security patches of the operating system necessary for all computers and software used in connection with the supply of Goods and/or Services.
11.5 The Supplier shall notify the Customer (and any relevant Customer Subsidiary) right away of any suspected infringement to the data security or other serious accidents or irregularities regarding the Customer Data.
11.6 The Supplier agrees that the Customer (and any relevant Customer Subsidiary) is allowed to give information received from the Supplier to the Customer Subsidiaries and third parties.
11.7 Protection of Personal Data
11.7.1 If the Customer discloses Personal Data to the Supplier, the Supplier shall comply with the applicable laws and rules on personal data protection.
11.7.2 The Supplier shall take the appropriate material, technical and organizational measures to guarantee an appropriate security level to Personal Data that is suitable for the respective risk and the capacity to guarantee confidentiality, integrity, availability and resilience of processing systems and services on a permanent basis.
11.7.3 The Supplier shall make all possible efforts to deliver the notice “Customer’s Privacy” (Communication of the Supplier or Contractor), to its employees involved in the management and supply of the Customer’s Goods and/or Services.
11.7.4 The Supplier agrees that it shall neither deny nor delay its consent to any change whatsoever to this clause 11, which, in the reasonable opinion of the Customer or one of its Subsidiaries, must be necessarily made to comply with any law or rule on personal data protection and/or guidelines or opinion of any competent supervision authority, and undertakes to adopt these changes with no additional cost for the Customer.
11.7.5 The Supplier acknowledges that the processing of Personal Data in conformity with the Agreement might require that additional data processing or data protection agreements are signed with the Customer or its Subsidiaries. To the extent that these additional agreements are not initially closed as parts of the Agreement, the Supplier, its Subsidiaries or subcontractors shall, on the Customer’s request, sign these agreements without delay, as indicated by the Customer and as required by a mandatory rule of law or a competent supervising authority on personal data protection or another competent authority.
12. RESPONSIBILITY AND INDEMNITY
12.1 Subject to the compulsory rules of law, the Supplier, with no limitation whatsoever, shall refund/indemnify the Customer and any of the damaged Customer Subsidiary for any liabilities, damages, costs, losses or expenses incurred by the Customer (or such Subsidiary of the Customer) as the result of the infringement of the Agreement by the Supplier. The Supplier shall, with no limitation whatsoever, refund/indemnify the Customer and any relevant Customer Subsidiary for any claim from third parties against the Customer (and any of the Customer’s involvement Subsidiary) in connection with the Goods and/or Services, including, with no limitation whatsoever, the claims that such Goods and/or Services infringe the Intellectual Property Rights of any third party. If so requested by the Customer, the Supplier shall defend the Customer (or any of the Customer’s involvement Subsidiary) from any claim of third parties.
12.2 The Supplier shall be responsible for the control and management of all of its employees, suppliers and/or subcontractors, and shall be responsible for their actions or omissions as if they were actions or omissions of the Supplier itself.
12.3 The Supplier shall maintain, and if so requested, give the relevant evidence thereof, a suitable third-party liability insurance policy as well as a policy against accidents / employer’s liability with a respectable and financially sound insurance company. This policy, however, will not release the Supplier from its liabilities with the Customer (or any relevant Customer Subsidiary). The amount insured cannot be considered a limitation of liability.
12.4 The Customer, without prejudice for its contractual or legal rights, shall reserve, at any time, the right for itself to compensate any request for refund linked to the Supplier’s performance with any amounts due to the Supplier pursuant to any agreement.
13. TERMINATION/WITHDRAWAL
13. The Customer may withdraw from the Agreement in full or in part by sending a thirty (30) calendar day advance notice in writing to the Supplier. In this case, the Customer shall pay the Supplier the amount of the Goods and/or Services delivered, yet not paid yet (subject to such Goods and/or Services complying with the provisions in the Agreement) in addition to the substantiated direct costs that have been reasonably incurred by the Supplier for the Goods and/or Services not delivered and not paid, but which, however, in no case can be higher than the purchase price for the Goods and/or Services agreed in the Agreement. No additional refund shall be due to the Supplier.
13.2 In case of breach of the Agreement by the Supplier, the Customer may terminate the Agreement in conformity with Clause 8.4.
13.3 The Customer can terminate the Agreement right away by notice in writing if (i) the Supplier has started one of the procedures provided for by Legislative Decree no. 14 dated January 12, 2019 as subsequently amended and/or supplemented, converted with Law no. 103 dated August 10, 2023; (ii) it is the recipient of a petition for winding-up subject to supervision of the Court (formerly Bankruptcy proceedings); (iii) or another similar procedure has been started against the Supplier because of its insolvency or as the result of a debt.
13.4 Upon termination, the Supplier shall refund right away to the Supplier (or the Customer Subsidiary), at its expense, all assets of the Customer or Customer Subsidiary (including Customer Data, documentation and transfer of the Intellectual Property Rights) that are under the Supplier’s control at that time, and provide the Customer (or the appointed Customer Subsidiary) with the full documentation of the Goods and/or Services delivered.
14. FORCE MAJEURE
14.1 Neither Party (nor any Customer Subsidiary that receives the Goods and/or Services) shall be responsible in case of late fulfillment or non-fulfillment of its obligations pursuant to the Agreement if the late fulfillment or non-fulfillment is attributable to a Force Majeure event. Force Majeure means an event that is unforeseen by the involved Party (or the Customer Subsidiary) on executing the Agreement, which is inevitable and beyond the reasonable control of the concerned Party (or the Customer Subsidiary), provided that such Party cannot overcome this event in spite of any reasonable effort and has sent a notice to the other Party (and, if the affected Party is the Supplier, to the relevant Customer Subsidiary) within five (5) calendar days after the occurrence of the Force Majeure event.
14.2 Should a Force Majeure event last for over thirty (30) calendar days, either Party may terminate the Agreement without delay by sending a notice in writing, without this entailing any consequent responsibility. Either Party shall make any reasonable effort to reduce to a minimum the effects of a Force Majeure event.
15. TRANSFER AND SUBCONTRACT
15.1 The Supplier cannot transfer, novate, dispose of, burden, or subcontract the Agreement or parts thereof (including any money credits to the Customer) without the Customer’s consent in writing.
15.2 The Customer may transfer, novate, dispose of, burden, subcontract or dispose of in any other way, in full or in part, the Agreement at any time and in more occasions, to its Subsidiaries or each assignee that acquires the business unit of the company of the Customer’s group to which the Agreement refers (and this assignee may do the same).
16. NOTICES
All notices duly signed must be sent by registered letter, courier, telefax or email (certified email) to the concerned Party’s address as indicated in the Agreement and/or such other address that this Party may have notified in writing (including the Customer Subsidiaries that are active at the relevant Delivery Place). Notices that are sent by email and telefax require the receiving Party’s confirmation in writing. All answers, mailing, information or documentation of the Supplier relevant to the Agreement shall be written in the language of the Agreement.
17. WAIVER
Failure to implement or exercise any clause of the Agreement shall be no waiver to the enforcement of this clause and shall not affect the rights to enforce this clause or any other clause contained in this document.
18. GOVERNING LAW AND SETTLEMENT OF LITIGATIONS
A) U.E. Countries
These General Purchasing Terms and Conditions (GPTC) and the Agreements are governed by Italian law. For any dispute that may arise regarding the execution or interpretation of these GPTC and the Agreements, Italian Jurisdiction will be applied and will be exclusively competent the Court of Monza (IT), even in any derogations from the provisions of EU Regulation n. 1225/2012
B) NON E.U. Countries
18.1 These General Purchasing Terms and Conditions and the Agreement are governed by the law of the country where the registered office of the Customer (GSR) is located, excluding, however, the rules on the conflict of laws and the United Nation Convention on Contracts for the International Sale of Goods.
18.2 If the registered office of the Customer and Supplier are located in the same country, any litigation arising from the Agreement, that cannot be settled on a friendly basis, shall be subject to the jurisdiction of the courts having jurisdiction on the place of the Customer’s registered office.
18.3 If the registered office of the Customer and Supplier are located in different countries, any litigation arising from the Agreement that cannot be settled on a friendly basis, shall be settled pursuant to the Arbitration Regulation of the International Chamber of Commerce by an arbitrator to be appointed pursuant to this regulation. The arbitration’s seat shall be in the place where the registered office of the Customer (GSR) is located. The language of the proceedings and the award will be the English language.
19. NULLITY OF THE CLAUSES
The nullity or non-opposability of any clause of the Agreement shall not invalidate the validity or opposability of the remaining clauses. The Agreement shall be effective as if the invalid or non-opposable clause had been replaced with a clause having a similar economic effect.
20. SURVIVAL
20.1 The provisions of the Agreement for which it is explicitly provided that they must survive the termination of the Agreement or, given its nature or context, for which it is provided that they must survive this termination, shall remain fully valid in spite of the termination.
20.2 The obligations as set out in Clauses 8 (Guarantee and Remedies), 9 (Intellectual Property Rights), 11 (Confidentiality, Security and Data Protection), and 12 (Responsibility and Indemnity) shall remain valid for an undefined period of time and survive the termination of the Agreement.
21. ENTIRE AGREEMENT
21.1 The Agreement (which includes these GSR General Conditions) and any other document included in the Order or in another agreement (applicable per relationem) shall form the entire agreement between the Parties and replaces any previous understandings between the Parties about its object.
21.2 In case of inconsistency among the several documents forming the Agreement, the following order of priority shall be applied:
21.2.1 any Agreement prepared by the Customer (to the extent that specific deviations to the GSR General Conditions are explicitly identified in that Agreement);
21.2.2 these GSR General Conditions; and, to still all doubts, any term and condition indicated or that is referred to in any other document shall be neither applicable nor a part of any Agreement whatsoever.
22. RELATIONS BETWEEN THE PARTIES
22.1 The relations between the Parties are those of independent parties that negotiate at market conditions and nothing in the Agreement can be construed as suitable to create a relationship of agency or employment of the Customer (or of any Customer Subsidiary) or with the purpose of having any type of relationship with the Customer (or with any Customer Subsidiary), and the Supplier shall be not authorized to present itself or act as such on behalf of the Customer (or of any Customer Subsidiary).
22.2 The Agreement does not imply a relation of employment between the Customer (or between any Customer Subsidiary) and the Supplier, or between the Customer (or between any Customer Subsidiary) and the Supplier’s employees appointed for the execution of the Agreement. The Customer (or any Customer Subsidiary) shall be exempt from any responsibility in connection with the workforce, Social Security or taxes in connection with the Supplier and its employees appointed for the execution of the Agreement.