General Purchase Conditions
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1. DEFINITIONS
- "Purchaser": Dainese S.p.A. and/or any company controlled by or affiliated to Dainese S.p.A.;
- "Parties" or "Party": the Purchaser and the Supplier, jointly or severally;
- "Good(s)": the raw materials, materials, semi-finished products, goods indicated in the Purchase Order, whether "generic" (i.e. not marked with any of the Purchaser trademarks - hereinafter referred to individually as "Trademark" or collectively as "Trademarks" - or not made with designs and/or prints and/or materials and/or photographs and/or forms and/or methods of execution exclusively provided and/or indicated by the Purchaser) or "customised" (i.e. featuring any of the Purchaser trademarks and/or made with designs and/or prints and/or materials and/or photographs and/or forms and/or methods of execution exclusively provided and/or indicated by the Purchaser);
- "Service(s)": the activities, services and works, also of an intellectual nature, indicated in the Purchase Order, the performance of which is entrusted by the Purchaser to the Supplier; the Services may also be customised (i.e. provided on the basis of specifications, ideas, images or other, exclusive, supplied and/or indicated by the Purchaser).
2. CONTRACTUAL EFFECTS
2.1. The Supplier declares that it is familiar with and accepts these General Purchase Conditions (the "GPC" or the "Agreement") in their entirety, expressly forgoing any of its own general (and/or particulars) conditions of sale.
2.2. These GPC regulate the purchase by the Purchaser from your company (the "Supplier"), of the good or service (collectively the "Purchase"), specified in each purchase order ("Purchase Order" or "PO").
2.3. The GPC are applied for each and/or future Purchase Order issued by the Purchaser, unless otherwise contractually agreed between the Parties.
2.4. The provisions below apply to both purchases of goods and services, unless the subject matter of the service makes the specific provisions applicable only to one or the other type of purchase.
2.5. These GPC are an integral part of the purchase orders issued by the Purchaser in favour of the Supplier, unless otherwise specified in each Purchase Order. Any special conditions specified in the Purchase Order prevail over these GPC.
2.6. The Purchaser reserves the right to amend these GPC, attaching such amendments and variations to any written correspondence sent to the Supplier; any amendments shall be deemed accepted by the Supplier if not expressly objected to within seven (7) days of receipt.
2.7. The Purchaser reserves the right to assign the Purchase Order/Orders to another company belonging to DAINESE Group. To this aim, the Supplier grants the prior consent to the assignment. The assignment shall be effective from the communication in writing by the Purchaser and will release the Purchaser from any obligations arising from or related the Purchase.
3. ORDERS
3.1. The PO expressly incorporates by reference the GPC available on the Purchaser's website, which shall govern the contractual relationship to the exclusion of any terms and conditions of the Supplier, unless expressly agreed in writing by the Purchaser.
The Purchase shall be deemed concluded upon the earlier of:
(i) the Supplier's written confirmation of the PO; or (ii) the commencement, even partial, of the performance of the PO, pursuant to and for the purposes of Article 1327 of the Italian Civil Code.
Unless expressly rejected in writing by the Supplier within seven (7) days from receipt, the PO and the GPC shall be deemed fully known and accepted by the Supplier. Any conduct consistent with the performance of the PO, including, without limitation, the commencement of production, procurement of materials, shipment, or delivery of the goods or services, shall constitute unconditional acceptance of the PO and of the GPC.
Any different or additional terms proposed by the Supplier, whether contained in order confirmations, delivery notes, invoices or other documents, shall be deemed null and void and without effect unless expressly approved in writing by the Purchaser.
3.2. The Purchaser may in any case revoke the Order at any time prior to the conclusion of the Purchase, without this implying any right to compensation or indemnity in favour of the Supplier.
3.3. The Purchaser, upon issuance of a Purchase Order, undertakes to purchase the Products at the agreed price, to be indicated in writing to the Supplier in each Purchase Order.
3.4. The Purchaser shall specify in the Purchase Order, upon adequate prior notice, the quantities, the dates for delivery and, when applicable, the Minimum Quantity Order ("MOQ") and the Lead Time of the Products.
3.5. Any communication (in whatever way this occurs) of expected or estimated quantities made by the Purchaser to the Supplier (hereinafter the "Open Orders") shall not in any way be binding on the Purchaser, which shall remain free to decide if actually issuing the Purchase Order or not and the quantities of Products to be referred to therein and when. All the supply conditions which could be set out in each of the said communications are, on the other hand, binding on the Supplier and may not be varied; the Supplier shall plan and take all measures necessary to process Purchase Orders placed by the Purchaser and shall be obliged to process the said orders upon the simple receipt thereof.
4. PRICES
4.1. The prices agreed and set in each Purchase Order shall be deemed as fixed and not subject to any variation whatsoever, unless otherwise expressly agreed, until the relevant Purchase Order has been processed. Prices are also inclusive of packing, labelling, marking, identification and transport of the Products, unless otherwise expressly agreed. In addition, the purchase prices of the Products agreed on yearly basis will remain valid for the entire year.
4.2. The Prices shall be structured and documented in such a manner as to allow the Purchaser, at any time upon reasonable request, to verify the underlying cost breakdown of the Goods and/or Services. Such cost breakdown shall be consistent with the agreed technical and commercial structure (including, where applicable, bill of materials, sourcing structure, scope of services, minimum order quantities and lead times), as defined in the relevant Good/Service specifications.
The Supplier shall provide, and update upon request, a detailed breakdown of its costs, identifying the relevant cost components depending on the nature of the supply, including, as applicable:
a) costs of raw materials, components and/or semi-finished products; b) transformation, manufacturing or assembly costs (including, where relevant, cut, make & trim activities) or, in the case of services, personnel and execution costs; c) logistics, sourcing and third-party costs; d) general and administrative expenses (overheads); e) Supplier's margin, expressed as a percentage applied on a clearly identified cost basis.
4.3. Development costs for the Products (moulds, dies, fixtures, equipment, etc.) are excluded from the purchase price and the above-mentioned break-down, remaining payable apart with different conditions to be agreed in writing between the Parties.
5. DELIVERY
5.1. The marking, packaging, labelling, identification, shipment and transportation of the Products shall be handled in compliance with the Purchaser's instructions.
5.2. The Supplier shall pay compensation for any damage stemming from delays, loss or damage caused by inadequate or incorrect marking, packaging, labelling, identification or shipment or by the failure to follow the aforementioned instructions.
5.3. The costs of shipment and transport will be paid by the Supplier, unless otherwise expressly agreed.
5.4. The Supplier shall properly comply with the delivery dates indicated in Purchase Orders.
5.5. If it becomes evident that the agreed delivery date cannot be promptly met, the Supplier must provide for the transport of the Products using means of transport other than those initially agreed upon, such as air transport, at Supplier's sole expense.
5.6. Unless otherwise expressly agreed in writing, the Products shall be treated as having been delivered, for the purposes of establishing compliance with delivery terms and the moment at which risk passes from the Supplier to the Purchaser, when they are delivered to the intended storage or factory premises, even in (possible, future) cases where transportation costs are borne by the Purchaser.
5.7. Any delay in delivery (even partial) attributable to the Supplier shall entitle the Purchaser to exercise the following rights:
a) demand fulfilment of the Purchase Order (including through the use of air transport, at Supplier's sole expense) and apply a penalty, upon simple written request by the Purchaser, for the delay equal (unless a different percentage is agreed in writing) to 1.5% of the retail price of the Purchaser's final product which is not delivered within the agreed time, for each working day of delay, and with excess franchise of 5 working days. This exemption shall apply only if the Supplier has notified in writing of the delay and the reasons thereof to the Purchaser with at least 3 (three) working days notice. In the absence of such notification, these penalties will start right from the first day of delay.
b) to cancel the Purchase Order due to a material breach on the part of the Supplier, with immediate effect and by full right, in accordance with and pursuant to art. 1456 of the Italian Civil Code by serving straight-forward notice on the Supplier.
5.8. The above shall not, in any event, affect the right to compensation for further damages actually suffered.
5.9. The Supplier warrants that the quantity of the Products delivered corresponds to that indicated in the Purchase Orders. The data regarding quantities made available when the Goods is checked by the Purchaser upon arrival at its destination shall be treated as conclusive evidence. In the event that the quantities of Products delivered do not conform to those agreed, the Purchaser may, at its own discretion:
a) accept the quantities actually delivered and set the surplus off against any subsequent consignments in equal measure; b) demand that the Supplier take back the quantity of Products exceeding that ordered, with the option to return them directly at the Supplier's risk and expense, and charge the said Supplier with the financial charges stemming from amounts already paid, together with storage costs in the event that any delay arises in the taking of such measures; c) require the Supplier to send the missing quantities of Products immediately, charging it, in any event, with charges and expenses stemming from the Supplier's non-performance.
5.10. The Purchaser shall be entitled to exercise the foregoing rights within three months from the date the Products are delivered.
6. FORCE MAJEURE
6.1. In the event that the order cannot be executed as a result of a proven state of force majeure (e.g. when the execution becomes impossible or unduly burdensome because of events beyond the Supplier's control, such as, by way of example, pandemic, epidemics, strikes, lock-outs, fires, war (whether declared or not), civil war, riots, requisitions, embargo, energy black-outs), the time for delivery shall be extended and the new delivery date fixed by mutual agreement between the parties on the basis of the impediment, provided, that is, that the Supplier has promptly notified in writing the Purchaser of the state of force majeure and has taken all suitable measures to limit the effects thereof. Force majeure may not be invoked if arising after the fixed delivery date; (a) recurrent climatic events (e.g., monsoons, etc) and (b) delays of any sub-suppliers of the Supplier, may not, under any circumstances, be treated as incidents of force majeure.
6.2. In the event that the proper execution of the order is prevented by delayed delivery on the part of the Purchaser of raw materials or semi-finished goods, when agreed, the Supplier shall give the Purchaser immediate written notice as soon as it is clear that the said delay may impede compliance with the delivery dates established and in any event before the processing of the Purchase Order is interrupted or delayed. Should the Supplier fail to give such notice, it may not consider itself exempt from liability for delayed delivery.
6.3. The Purchaser shall not be held in any way liable towards the Supplier in the event that the arrival of consignments is impeded or delayed due to circumstances not attributable to the Purchaser, in particular, strikes, fire, picketing or any other circumstances beyond the Purchaser's control, or in the event that such circumstances reduce the need for the Products ordered.
7. ACCEPTANCE
7.1. The simple delivery and payment of the Products shall not under any circumstances be considered as acceptance thereof.
8. INVOICES AND PAYMENTS
8.1. All payments will be made by the Purchaser upon presentation of a regular invoice by the Supplier, in the terms indicated in the Purchase Order.
8.2. Invoices of the Supplier shall include the following information:
- the Purchaser code number and description of product invoiced;
- Supplier's code number;
- Supplier's tax code;
- unit of measure, quantity and price;
- cost centre.
8.3. The Purchaser shall make payments by bank transfer according to the agreed payment terms indicated in the Purchase Order, provided it has received the documents, duly completed, referred to in the foregoing recital and/or in the Purchase Order.
8.4. The credit stemming from the consignment under every order may not be assigned or delegated in any form whatsoever, exception made for any assignment agreed in writing between the Parties.
8.5. The Purchaser reserves the right, in any event, to set off against the total amount outstanding to the Supplier, a sum representing the price of the defective or non-conforming Products.
9. CONFIDENTIALITY - INDUSTRIAL PROPERTY RIGHTS AND TRADEMARKS
9.1. The Supplier undertakes to maintain as strictly confidential and therefore not to divulge and use all the information and data communicated by the Purchaser in fulfilment of this GPC. The Supplier will take all security measures necessary, including with its employees, to ensure compliance with this confidentiality obligation. Also, during the processing of the products, individuals who collaborate in any way with companies which are competitors of the Purchaser may not gain access to the production areas. Possible further agreements regarding secrecy and/or confidentiality may be agreed upon.
9.2. The Supplier shall guarantee that the products supplied to the Purchaser do not infringe any patent, copyright or other intellectual or industrial property right of third parties and that no legal action for infringement of such rights and/or patents, relating to the products, is pending before any court. In addition, the Supplier shall hold the Purchaser harmless from any damages deriving to it from third party claims alleging such infringement or violation and shall intervene in actions brought against the Purchaser assuming the judicial position with the exclusion of the Purchaser.
9.3. The results of all activities performed by the Supplier and/or its sub-suppliers or sub-contractors for the Purchaser, in execution of the Purchase Order, including but not limited to all information, data, reports, work notes, drawings, creativity, projects, analyses developed or prepared by the Supplier and/or its sub-suppliers or sub-contractors in connection with the Purchase Order, any new patents, designs or other, shall be the exclusive property of the Purchaser.
9.4. The Supplier undertakes, upon request and according to the instructions of the Purchaser, to affix the Purchaser Trademarks or other trademarks or distinctive signs belonging to the Purchaser on the products ordered and/or on the original packaging that the Purchaser may request. This operation may in no case be understood as a licence to use the Purchaser Trademarks and the products as marked above may be supplied exclusively to the Purchaser and may not be transferred, even free of charge, to third parties without the prior written consent of the Purchaser. It is in any case expressly prohibited for the Supplier to (i) make any type of graphic, chromatic or literal modification or addition to the Purchaser Trademarks, (ii) use distinctive signs incorporating the words, font, signs, shapes and colours that characterise the Purchaser Trademarks, as well as any other sign that may be confused with them or that may be considered derived from them.
10. QUALITY AND GUARANTEES
10.1. The Supplier grants compliance with the specific technical parameters indicated in the purchasing Technical Specifications and/or the technical drawings agreed with Dainese. Any change to the Technical Specifications of the Goods shall be communicated in writing to DAINESE.
10.2. The Supplier assures that the products comply with the legal requirements and the international standard relating to the safety of the products, their effects on the environment, their commercialization in the usual the Purchaser's markets. The Supplier assures that the products are free of harmful substances or any other substance dangerous for health and safety of the final user, according what has defined by international regulations.
10.3. The Supplier - even if not certified ISO 9001 - has to demonstrate to have a quality management system that permit to trace the manufacturing phases and the raw material.
10.4. The Purchaser can visit the Supplier's site of production in any moment to verify its Quality Management System and eventually propose to the Supplier the necessary improvement activities.
10.5. The Supplier warrants that the Products supplied are free of faults or quality defects, that the agreed technical standards, quality standards and other features have been met and, where applicable, the sample established by the Parties has been followed.
10.6. The Supplier guarantees to the Purchaser the supplied Products for two years after their sale to the consumer. In particular:
- If a fault, defect or non-conformity is detected "before" the Products are sold to the Purchaser's customers, the Purchaser shall be alternatively entitled to:
a) have the defective or non-conforming Products replaced immediately at the Supplier's expense, following their prompt collection by the said Supplier; b) in the case of purely aesthetic defects, retain the defective Products with a 70% discount of the price agreed upon for the relevant Products; c) reject and send back the defective or non-conforming Products at the Supplier's risk and expense without demanding that they be replaced and treating the Purchase Order as having been cancelled and non performed with regard to the Products rejected; d) require the Supplier to select the defective or non-conforming Products at its own expense or to make the selection itself at the Supplier's expense should the said Supplier fail to do so within the period indicated by the Purchaser. In the event that the Purchaser selects the defective Products directly, the ensuing expenses shall be borne in full by the Supplier who shall be charged with the downtime incurred; or e) recover the Products, at the Supplier's risk and expense, performing additional processing in cases of emergency or, where the Supplier is not capable of replacing them immediately, or where specifically agreed with the said Supplier; f) charge the Supplier with the value of the defective products at the resale price applied to its dealers at that time.
- If a fault, defect or non-conformity is detected "after" the Products have been sold to third parties, the Purchaser shall be entitled, up to the expiry of the warranty it has offered to its customers (at the moment, two years as from the date of the purchase), to:
a) have the defective Products replaced promptly free of charge, at the Supplier's expense; or b) repair the defective Products, at the Supplier's expense; or c) charge the Supplier with the value of the defective products at the resale price applied to its dealers at that time.
Any claims under letters 1) and 2) must be submitted to the Supplier within two (2) months from the date the defect is actually discovered. Notwithstanding the above, the Purchaser shall have the right to suspend payment of the invoices outstanding from the Supplier until the definitive resolution of said non-conformities. In addition, the Purchaser shall have the right to enforce further specific penalties (if provided for in the separate Quality Agreement and/or in other contractual documents) upon simple written request by the Purchaser. The Purchaser will have the right to offset the penalties against any invoice issued or to be issued by Supplier, without prejudice to further compensation for direct and indirect damages resulting from such non-compliance.
10.7. The Supplier undertakes not to place on the market and to destroy – at its own expenses – all defective or non-conforming Products which have not been repaired for the Purchaser through additional operations, unless they have been already destroyed by the Purchaser. The Purchaser shall be entitled to inspect and check that the defective goods have been actually destroyed in their entirety.
10.8. In the event that the Purchaser, as a result of the defective or unreliable nature or non-conformity of the Products, is held liable by third parties under any type of contractual or non-contractual obligation (including damage caused by defective goods, by non-compliance with regulations dealing with safety, protection of the environment, the use of materials harmful to the health or other regulations), the Supplier shall hold the Purchaser harmless against any of the aforesaid actions or claims and shall compensate it for any further damage incurred.
11. TERMINATION
11.1. Without prejudice to the termination provided for in the Italian Civil Code, the Purchase may be terminated, pursuant to article 1456 of the Italian Civil Code, with immediate effect, on the initiative of the Purchaser by notice sent to the Supplier by registered letter with return receipt, in the event of:
- the Supplier assign to third parties, in whole or in part, or entrusting to third parties, even partially, the supply of the products and/or the performance of the Services, without prior written authorisation from the Purchaser;
- breach of the provisions contained in articles 9.1, 9.2, 9.3 (Confidentiality - Industrial Property rights and Trademarks), 10 (Quality and guarantees), 13 (Compliance).
11.2. In addition, the Purchaser shall be entitled to withdraw from this agreement with immediate effect, by simply communicating such intention to the Supplier in writing, in the event of: i) the Supplier is put into liquidation or admitted to other bankruptcy or insolvency proceedings or other equivalent proceedings or is otherwise declared bankrupt or subject to other bankruptcy or insolvency proceedings or other equivalent proceedings or has proposed restructuring, reorganisation or crisis settlement agreements or other equivalent proceedings and ii) changes in the Supplier's shareholder structure involving the entry of a competitor of the Purchaser, regardless of the size of the shareholding acquired, either directly or indirectly iii) changes in the Supplier's shareholder structure involving a change in control of the company.
12. INSURANCE
12.1. The Supplier must be duly insured against liability for damage to third parties for any reason whatsoever, including but not limited to product liability. The Supplier must provide, at the Purchaser's request, the relevant certificate issued by its insurer(s) stating that the insurance cover is in place. The Supplier also undertakes not to cancel or amend the terms of the insurance cover for the entire duration of the supply relationship with the Purchaser.
13. COMPLIANCE
13.1. The Supplier acknowledges that the Purchaser has adopted a Group code of ethics (hereinafter "Code of Ethics") and an organisational, management and control model (hereinafter referred to as "Model 231") in accordance with the principles and guidelines provided for in D.lgs. 231/2001 to prevent the commission of the offences provided for in that decree. The Supplier undertakes to comply with the principles and rules of conduct contained in the above-mentioned documents both of which are published on the Purchaser website.
13.2. The Supplier acknowledges that the Purchaser has adopted a Code of Conduct for Suppliers published on the DAINESE website. The Supplier undertakes to comply with Code of Conduct for Suppliers which the Supplier represents that it expressly knows and more specifically with:
- R.E.A.Ch. requirements;
- the requirements on environmental-toxicological parameters;
- the requirements concerning the regulation and restriction of per- and polyfluoroalkyl substances (PFAS), including compliance with applicable EU and USA legislative measures.
13.3. The Supplier undertakes to comply with all the obligations set forth in Regulation (EU) 2016/679 ("GDPR"), as well as the national adaptation legislation, where applicable, and undertakes to process personal data in accordance with the principles of lawfulness and fairness, protection of fundamental rights and freedoms, in compliance with technical and organizational measures suitable to guarantee a level of security appropriate to the risk, for purposes strictly functional to enter into the agreement and the execution of the agreement itself. The Supplier acknowledges that the information notice provided for by Article 13 of the GDPR is available on the Purchaser website at https://policy.dainese.com/privacy.
13.4. The Supplier shall strictly comply with all the obligations under the International Economic Sanctions regime, which includes the laws, regulations or restrictive measures, as applicable from time to time, concerning economic sanctions (including, without limitation, embargoes) imposed by national or international authorities in charge of such sanctions. If the Supplier should fail to comply with the above mentioned regulations – or is in a situation of actual or potential conflict with the "International Economic Sanctions" regime - the Purchaser shall be entitled to immediately terminate all supply relationship in course with the Supplier.
14. MISCELLANEOUS PROVISIONS
14.1. The Supplier undertakes to keep the business relationship with the Purchaser confidential and to treat as confidential all information of a commercial or other nature brought to its attention related to the Purchase.
14.2. The failure of one party, on one or more occasions, to satisfy any one or more of the conditions contained herein shall not, under any circumstances, affect the right on the other's part to demand, at any time, performance thereunder.
14.3. The Supplier shall not assign to third parties, in whole or in part, or entrusting to third parties, even partially, the supply of the products and/or the performance of the Services, without prior written authorisation from the Purchaser.
15. APPLICABLE LAW AND JURISDICTION
15.1. The Purchase is governed by Italian law.
15.2. The Court of Padua shall have exclusive jurisdiction over any disputes arising out of and/or in connection with the Purchase.
