1. General Provisions
1.1 The present terms and conditions shall be the only such terms and conditions applicable to orders issued, and purchase contracts entered into, by Brugola OEB Industriale Spa, or by the Companies directly or indirectly controlled by the same (hereinafter “Brugola”). Any supplier’s purchase terms and conditions (hereinafter “Supplier”) that conflict either in whole or part with the present purchase conditions, shall only be valid when explicitly accepted in writing by Brugola. Acceptance or payment of Supplier’s goods or services (hereinafter “Products”) shall not be construed as Brugola’s acceptance of the Supplier’s purchase conditions.
2. Orders and Order amendments
2.1 Price quotes shall be binding upon the Supplier, but their issuance shall not give rise to any right to payment, unless otherwise agreed in writing in advance by Supplier and Brugola.
2.2 Orders, contracts, and requests for delivery or supplies, as well as modifications or additions to the same, shall not become binding upon the purchaser if not memorialized in a written document issued by Brugola.
3. Delivery of Goods / Provision of Services
3.1 Deliveries or materials that do not conform to the specifications set forth in Brugola’s orders, shall be accepted only when and if accepted in writing by Brugola.
3.2 Should Supplier carry out the delivery earlier or later than scheduled and/or deliver the goods to a location other than the one indicated by Brugola, the latter may refuse to accept such delivery, and may demand full damages.
3.3 Notwithstanding anything contained in Section 1510, paragraph 2, of the Italian Civil Code, unless otherwise expressly agreed upon in writing between the parties, Supplier shall bear all shipping costs. Supplier shall be liable for the goods while in transit. Any damage, loss, shortages, or other missing materials shall be solely Supplier’s responsibility. Supplier shall immediately notify Brugola’s purchasing office of any issues that might impede its ability to deliver or supply goods or services on time, and at the required level of quality. Such requirement shall not, however, relieve Supplier of its related liabilities in terms of performance delays, or goods quantity/quality shortfalls for any given order.
3.4 If Supplier is responsible for installing or starting-up any devices or systems, and unless otherwise agreed, Supplier shall bear all related indirect costs, including for example travel and transport costs, equipment supply, and expense reimbursement.
3.5 Acceptance – whether outright, or under a reservation of rights – of a delayed goods delivery, or provision of services, shall never be construed as a waiver of Brugola’s right to seek damages for such delays.
3.6 Generally, partial deliveries or material supplies shall not be permitted, unless previously agreed in writing. Brugola reserves the right to return any surplus quantities within a month of receipt of the same.
3.7 Deliveries made without an accompanying document bearing material specifications (kind, quality, and quantity), and reference to our order, shall not be accepted.
3.8 For purposes of making a return, Brugola’s determination of quantity, weights, and dimensions at the acceptance stage shall prevail.
3.9 Regardless, Supplier shall, when making its delivery, provide Brugola all necessary and suitable documentation regarding its ordinary use (e.g. instruction and operating manuals, installation and assembly instructions, and warranties .
3.10 Service subcontracting shall only be permitted with Brugola’s written consent. Should services be subcontracted, Supplier shall nevertheless be liable to Brugola for all operations carried out by the subcontractor as if Supplier had carried them out itself. Should Supplier obtain services from third parties, Supplier agrees, in accordance with and pursuant to Section 1381 of the Italian Civil Code, to have the terms and conditions defined herein included in all subcontracts.
3.11 Brugola shall be notified immediately if any license of third-party industrial or intellectual property rights is required to fulfill the order.
3.12 Services must be performed in conformity with the contract purpose, and the purpose of the service itself. The foregoing applies to documentation regarding specifications as well. Supplier shall provide materials and supply according to industry standards, and comply with all applicable laws, as well as with directives from consumer-protection association, safety practices and related measures.
3.13 Brugola may utilize and exploit, at its discretion, and unencumbered by any claim or right of any third party, all results derived from the execution of services. This shall include inventions or usage and exploitation rights under the applicable provisions of the industrial property code, from the concept stage through to manufacture, without any compensation thereby accruing to Supplier.
4. Notice of Shipment and Invoice
4.1 The details listed in our orders, contracts, and delivery/supply requests shall be binding. All invoices shall contain, without exception, the order number to which they refer, and they must be sent to the address noted on the purchase order /contract. Invoices not bearing the order number will be returned to sender, and will not be processed.
5.1 Unless otherwise agreed, the prices are intended as “Delivered at Place” delivery type; packaging is included. Value added tax (VAT) is excluded. Supplier bears all risk of loss or damage until goods are received by Brugola or a representative of the same, at the agreed-upon delivery site.
5.2 Compensation for the goods/services subject to the supply agreement shall be separately agreed upon in writing for each order or contract. Such agreed-upon prices cannot be modified unless such modification is expressly reduced to writing, on a case-by-case basis. Where a contract does not set forth an exact price, but compensation is based on expenses actually incurred and substantiated, Supplier warrants it will keep its request within the scope of the offer or the total estimate as approved. Supplementary costs shall therefore only be cognizable if previously approved by Brugola and reduced to writing.
6. Payment terms
6.1 The payment terms appearing in the order/purchase agreement shall govern. Issuance of payment is conditioned on reconciling the invoice to the purchase order, and to the goods received note.
6.2 The rights and duties arising out of contracts signed with Brugola are non-transferrable. Receivables arising out of the transfer of goods or services to Brugola cannot be assigned unless expressly authorized in writing by Brugola.
7. Returns for defects
7.1 Acceptance of goods and/or services is conditioned upon inspection and/or testing by Brugola in order to verify the correct quantity, as well as to make sure there are no flaws or defects, and generally that the items supplied are complete and conforming. Brugola shall promptly provide notice of any defect as soon as it is discovered. By the same token, Supplier waives any right to raise any objection regarding a delay in providing notice of a flaw or defect.
7.2 The goods and services supplied by Supplier and/or third parties shall be guaranteed to be free from flaws or functional defects, and therefore covered by the warranty against defects set forth in Section 1490 of the Italian Civil Code, as well as by all – with no exceptions – warranties available under Italian law as applicable to the particular supply agreement, subcontract, or service provided. To that end, the Parties stipulate that, in accordance with the first paragraph of Section 1495 of the Italian Civil Code, the deadline for Brugola to report defects to the vendor is 45 working days from their discovery, unless Italian law provides for a different or longer timeframe. Regardless, Supplier hereby irrevocably waives any right to object to any delay in Brugola’s reporting of a defect.
7.3 Should Supplier not immediately proceed to cure the defects once Brugola has made such a request, Brugola is hereby authorized, in case of emergency, and especially to avoid imminent harm or to prevent greater harm, to either directly, or through third parties, undertake such cure themselves, and to charge such cover expenses to the Supplier, including a replacement of the defective product.
7.4 Each and every expense Brugola may incur due to the delivery of defective Products (including but not limited to: transportation, shipment, handling, labor, assembly, disassembly, materials, or inspection/testing costs, penalties, or claims by customers) shall be borne exclusively by Supplier.
7.5 The Parties hereby stipulate that should Brugola object to the delivered materials for any reason, Brugola may suspend the related payment until a court of law determines conformity of the delivered materials and whether or not the dispute itself had merit and such judgment has become final. Therefore, Supplier shall not be able to seek the related receivable, and the amount not paid by Brugola shall not be subject to interest of any kind, including statutory interests and those set forth specifically in Italian Legislative Decree 231/2002 (as subsequently amended).
7.6 Brugola may offset any amounts claimed by Supplier as damages with those owed for the supply of materials, even before a court has certified Brugola’s receivable.
7.7 Brugola’s payment of such disputed materials shall not in any way be construed as a waiver of Brugola’s right to object to the same, or to repeat the payment, or to seek damages from the Supplier, with none of these rights excluded.
8. Product Liability
8.1 Should a product liability claim be raised by a third party against Brugola, Supplier shall be obligated to indemnify and to hold Brugola harmless against such claim if, and to the extent, the damage is attributable to a defect in the product as supplied by Supplier. Should liability be based on breach, such liability – however – shall attach only if Supplier is in breach. Should the cause of the damage fall under Supplier’s liability, Supplier shall bear the burden of proof on that issue.
8.2 In a situation to which the previous paragraph, 8.1, applies, Supplier shall be responsible for making Brugola whole with regards to any damages, or to any cost or expense incurred, including the costs of any legal action.
9. Termination and Withdrawal
9.1 In addition to statutory rights of withdrawal and termination, Brugola shall also have the right to withdraw from the contract/order or to terminate the order/contract immediately where:
- Supplier has frozen its shipments to its customers;
- Supplier’s financial/equity position is, or is in danger of becoming, profoundly/substantially deteriorated, thereby compromising its ability to fulfill its commitment to Brugola;
- Supplier has become insolvent, or finds itself over-indebted, or has ceased to make its own payments;
- Supplier files for bankruptcy, for a creditor agreement, or for any other insolvency or debt-restructuring procedure involving Supplier’s capital;
- Supplier is in breach under the terms of the present general conditions of purchase.
9.2 Should Brugola withdraw from, or terminate the supply agreement under the rights of withdraw and termination listed supra, Supplier shall be required to pay Brugola damages for the losses or harm resulting therefrom.
10. Operations and Worksites
10.1 The persons who, in carrying out an order or contract, perform work at one of Brugola’s plants or sites, shall abide by all applicable occupational regulations. Subject to the provisions of Section 1229 of the Italian Civil Code, Brugola shall not be responsible for accidents taking place on Brugola’s plants/site which injure these persons.
11. Confidentiality and Privacy
11.1 Drawings, sketches, models, and samples provided by Brugola to Supplier, or created by Supplier on Brugola’s behalf, shall be Brugola’s exclusive property. Their use shall be reserved exclusively for the purposes related to the transfer of goods, or rendering of services to Brugola, and cannot be given or shown to third parties. All intellectual property rights related to such products shall be Brugola’s exclusive property.
11.2 Supplier shall keep strictly confidential, as towards to third parties, all commercial and technical information made available to Brugola (including data that might be obtained from objects, documents, or software, or from any other source or experience), as well as the results of works made pursuant to contract, unless such works are already in the public domain. The data shall be made available only at Supplier’s headquarters, and only to those persons who need to access the same to carry out the supply agreement with Brugola. Such persons shall agree to keep such information strictly confidential. The information shall be Brugola’s exclusive property, and cannot be copied or used commercially – except for those deliveries intended for Brugola – unless authorized in writing by Brugola. All rights to such information shall be reserved to Brugola.
11.3 The goods manufactured based on documentation like drawings, models, and the like, whether created by Brugola, or based on Brugola’s confidential information, as well as goods manufactured with our instruments, or instruments modeled on the same, can never be used by Supplier beyond the scope of its supply contract with Brugola, nor may they be offered or transferred to third parties. The foregoing shall likewise apply to Brugola.
11.4 The duty of confidentiality with regards to technical and commercial information received by Brugola for the performance of the service shall survive the completion and conclusion of the contract until, and insofar as, such information has not entered the public domain for reasons not attributable to Supplier, or until Brugola has waived the privilege in writing.
11.5 Supplier shall make Brugola whole of any harm arising out of Supplier’s breach of the Duty of Confidentiality and Privacy.
12.1 Supplier must hold all permits and licenses needed to carry out its operations, and shall abide by all regulations, in particular those involving environmental protection, and those involving HR obligations, workplace safety and health, and all employment-law related duties, including any applicable provisions of collective bargaining agreements, or those related to social security and insurance contributions, undertaking from this point forward to make Brugola whole for any and all damages arising out of a failure to abide by such regulations.
12.2 Should supplier break the law and not be able to show that Supplier has remedied such violation, and that Supplier has made subsequent remedial actions to prevent such violations in the future, Brugola reserves the right to terminate the supply agreement without notice, while reserving the right to seek damages for the same.
12.3 Moreover, should the supply agreement be for subcontracted services, Supplier agrees to continue to hold Brugola harmless, and to indemnify Brugola from any and all consequences arising out of third-party claims (including those from Supplier’s employees and/or its subcontractors, as well as those made by National Social Security Institutions), related to Supplier’s failure to abide by the foregoing, and to make Brugola whole of any and all damages directly related thereto.
12.4 Supplier performing contracted services shall provide Brugola a quarterly updated DURC (the Single Insurance Contribution Payment Certificate) and, within the limits allowed under applicable privacy laws, all documentation suitable to prove compliance with the duties listed supra. A failure to comply with the duties assumed in the present section shall be considered material breach, and shall give Brugola the right to terminate the contractual relationship immediately.
13.1 Should any clause herein, or in any subsequent, supplemental agreement be deemed invalid, such a determination shall not affect the validity of the other terms and conditions herein, which shall remain in full force and effect.
13.2 The present conditions of purchase are governed exclusively by the laws of the Republic of Italy. For any controversy arising out of the present conditions, or connected thereto, the Court of Monza shall have exclusive jurisdiction.