TERMS AND CONDITIONS OF PURCHASE OF BEST
1) APPLICABILITY These Terms and Conditions (“Conditions”) provided by Best (also said “Buyer”) to the Supplier (as each is shown on the face of the Purchase Order) and made available on website, which such Supplier acknowledges and accepts in full shall supplement and govern the Purchase Order (said also “Order”) which refers to these Conditions and any other documents, such as: specifications, datasheets and technical indications. The Conditions shall apply to all purchases of goods and services by Best from the Supplier, as described in the Order. The purchase forecasts shall not be considered orders and shall not under any circumstances bind the Buyer. Any additional, different, or inconsistent terms or conditions contained in any form, acknowledgment, acceptance, or confirmation used by Supplier in connection with the implementation of the Purchase Order are hereby objected to and rejected by Buyer. Execution of the contract and/or supply by the Supplier shall entail in any case the unconditional acceptance of these Conditions.
2) CONCLUSION OF THE AGREEMENT. The Purchase Order together with these Terms and Conditions, collectively constitute a binding Agreement (said “Agreement”) between the Buyer and the Supplier and apply to all purchases of Goods and Services (together said “Products”) issued by Buyer. The Agreement shall be deemed finalized upon receipt by the Buyer of the Order Confirmation signed by the Supplier for acceptance WITHOUT AMENDMENTS AND/OR RESERVATION within 2 (two) working days of receipt of the Order thereof, or when the Supplier commences performance of the contract by giving notice to the Buyer. In both cases, these Conditions shall be deemed accepted. Buyer reserves the right to revoke the order until it has been accepted within the above-mentioned terms. The Supplier, should the Buyer so request, undertakes to amend or supplement the technical specifications of the Products or suspend production or supply.
3) ASSIGNMENT. Supplier shall not subcontract or assign its rights and obligations under the Agreement, in whole or in part, without Buyer's prior written consent.
4) TESTING If required by Buyer or by standard industry practices, the ordered work, Products, molds, equipment, works and processing will be subject to testing, possible by sending of prototypes and/or models. The Supplier shall notify Buyer upon the completion of the ordered work and at least 5 days prior to the date set for the testing, the Supplier shall deliver to the Buyer the ordered work, the Products and equipment, the documentation, the technical comments, the certification of the project, the graphical representations and calculation, the attestations relating to the materials used, the data of origin suppliers and of the performed treatments. Testing operations shall be conducted under Buyer’s technical supervision within 15 days or other deadline agreed by the Parties, after the date of completion of the work notified by the Supplier, according to the forecasts and the technical requirements mentioned in the Order and/or in the Technical Supply Specifications. The Supplier undertakes to make available its own personnel for the execution of the testing operations. At the end of such testing operations the Parties shall compile a report, containing any corrective actions, amending, supplementary and/or substitutive notes and the relative deadline for the performance by the Supplier of such activities and the date of the following testing. The Supplier is authorized to start series production only after the written approval of the Buyer.
5) DELIVERY. (5.1) All Products must be (i) suitably packed or otherwise prepared by Supplier for shipment to prevent damage, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with the instructions on the Purchase Order. Expenses incurred due to failure to comply with these terms are the responsibility of Supplier. The invoices, bills of lading, packing slips, cartons and correspondence shall point out the relevant details of the Purchase Order, if the shipment represents the total or partial fulfillment, the content and weight of the packages and, where appropriate, technical diagrams, instructions for installation and for testing. Bills of lading must be attached to invoices, indicating the carrier, the number of packages, the weight and the date of shipment. Where it is expected that testing or approval of the Product will take place, delivery is deemed performed after issuing of the positive test certificate, according to technical specifications given. (5.2) Marking, packaging, labeling, identification and, unless otherwise agreed, shipping and transportation of Products are provided by the Supplier, and the related costs are included in the prices charged by the Supplier. (5.3) Title to and all risk of loss or damage to Products remains with Supplier until receipt by Buyer of conforming Products at the required destination. Deliveries are to be made only in the quantities and at the times specified in the Purchase Order. Buyer reserves the right to return, at Supplier's cost, whatever exceeds the order. Delivery terms must be stated in the Order. Delivery terms FCA per INCOTERMS 2010 if shipment is international. If delivery is not expected to be made on time, Supplier must immediately notify Buyer and take reasonable steps, at Supplier’s cost, to expedite delivery. Buyer may cancel any order if delivery is not made on time or if notice is given that a delivery is expected to be late. (5.4) Buyer may reject any delivery or cancel all or any part of any Order if Supplier fails to make delivery in conformity with the terms and conditions of the Agreement, including, without limitation, any failure of Products to conform to the specifications laid down by the Parties.Buyer’s acceptance of any non-conforming delivery shall not constitute a waiver of its right to reject future deliveries. If Supplier (i) fails to supply Products, (ii) fails to supply Products meeting specifications, or (iii) fails to meet Buyer’s delivery schedules and delivery requirements and does not provide a comparable quality substitute (for which substitution Supplier must assume any expense and price differential), Buyer may, in its sole discretion deems necessary, purchase Products from an alternative supplier. In such event, Supplier shall reimburse Buyer for any additional costs and expenses incurred by Buyer in purchasing Products from such other supplier as an alternate source, with the Buyer’s right to charge the Supplier any damages suffered for late delivery and stop of the production line. In addition, in such cases in which Buyer may refuse to take delivery of the Products, Supplier undertakes to withdraw the Products at its sole expenses within eight (8) days of the refusal.
6) WARRANTIES 6.1) Supplier represents and warrants that: (a) the supply of goods / services / works / processing ordered by the Buyer are: (i) in conformity with the Order, the technical specifications, the project and applicable technical descriptions, drawings and samples supplied; ii) free from defects in design, material, and workmanship, and appropriate to the specific use required; -if services- provided in a manner of efficiency and functionality; (iii) in compliance with all the applicable laws (whether foreign or domestic), including laws related to the health and safety of consumers, child labor laws, safety and accident prevention in workplace, protection of the environment; b) the Products (including packaging, labeling and documentation) do not infringe upon or violate any intellectual property right of any third party; and c) it has the right to grant Buyer a license to any software embedded into supplied Product. The Supplier offers the guarantee in Section 6.1(a) on Products for a period of 24 months from the date of delivery of the Product or from the issue date of the positive test certificate. On the supply of molds and equipment, the Supplier guarantees a useful life equal to the number of "beats" indicated in the Order and in the Technical Supply Specifications. The delivery of Products to the Buyer as well as the signing of the transport document or the payment of supplies, do not constitute acceptance of the Products by the Buyer, which maintains the rights under this section 6.1 and following sections. (6.2) Buyer has the right to inspect the compliance to the Order of Products in regard to the quality, quantity and technical specifications and to reject any or all of them that are in Buyer's judgment, defective or nonconforming. Subject to the right of the Buyer to complain at any time of latent defects, THE BUYER RESERVES THE RIGHT TO REPORT THE NON-COMPLIANCE OR DEFECTS OF THE SUPPLY OR OF AN INDIVIDUAL COMPONENT PART WITHIN 30 DAYS FROM DISCOVERY. If the Buyer, subject in any case to the right to claim damages, ascertains that the supplies of Products or work, either in whole or in part, are defective, incomplete or do not comply, may: (i) ask the Supplier -at Supplier’s expense- to remedy the defects and non-compliance ascertained, by repairing or replacement of defective products, or by repairing the defective piece by charging all costs to the Supplier; (ii) ask for a reduction of the price corresponding to the lower value of the Products; (iii) terminate the Order for breach of Supplier; (iv) compensate the price which may be due to the Supplier with the value of the damages. Supplies repaired and / or replaced shall have the same warranty as indicated above, from the date of completion of the repair and / or replacement and / or testing. (6.3) Parties agree that “Catastrophic Defect” will be deemed to occur when: (a) the warranties set forth in the previous Section are breached with respect to (i) 3% or more of the Products shipped within any three-month period, or (ii) 1% of the Products shipped within the first six months of the Agreement between Supplier and Buyer; (b) the return and exchange rates of the Products sold are in excess of the category average for the Product, as determined by Buyer’s records; (c) a single or single group of defects in a Product (any manufacturing defect that affects the Product cosmetically or functionally) is determined by Buyer to impact more than 10% of such Product; (d) a Product recall (including any service parts, replacement parts, spare parts, assemblies and tools required for servicing Products) that is necessary in the reasonable opinion of Buyer or Supplier; or (e) the Product should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of a voluntary or mandatory consumer product safety recall). Provided, however, that no Catastrophic Defect will be deemed to occur if the applicable defect results solely from an act or omission of Buyer. IN THESE CASES Supplier within 30 days of Buyer's demand SHALL indemnify Buyer or its designated third party, for all costs, such as administrative costs, transportation, product replacement, parts, labor, personnel employed and the price increases in insurance premiums, taxes, penalties and legal costs. BUYER RESERVES THE RIGHT to request further damages.
7) EQUIPMENT AND LOAN TO USE The designs, materials, technical specifications, software, sample-pieces, prototypes, semi-finished products, raw materials and equipment (gauges, dies, equipment specific, control equipment) also produced by the Supplier and assigned to it as loan or subcontracted, are owned by the Buyer, can only be used for the production and processing for the Buyer and can not be subject to disclosure or duplication. The Supplier is a custodian of the equipment and is responsible for their loss or damage. The Buyer shall be entitled to charge the Supplier the costs for replacement and repairs, without limiting compensation for further damages. In regards to the aforementioned materials, without exception the Supplier must: a) mark and register them as property of the Buyer in the manner and according to the instructions received from Buyer; b) provide adequate insurance against theft, fire, tampering or other insurable causes of loss or damage; c) keep and use them with great care and provide, at its own cost, for the maintenance as per the instructions of the Buyer; d) do not move them outside its premises; e) allow the Buyer during normal working hours to control the manner of their storage and use; f) do not sell them to third parties for any reason, even if free, nor allow any liens on them; g) not use them or permit to be used except for the execution of the orders of the Buyer; h) return them without exception and at all times at the request of the Buyer, conforming to the instructions for the return; i) immediately notify the Buyer of any legal actions or executions of third parties that may affect the properties of the Buyer; l) inform the Buyer of any need to provide for extraordinary maintenance in reasonable advance; and m) prepare periodic reports at the request of the Buyer on the state of the equipment and / or the molds used for the production.
The Buyer reserves the right to charge the Supplier for damages to the equipment and materials of its property as well as indirect damage, such as, by way of example, delays in customer’s deliveries and stop-line as a result of Supplier’s failure to comply with the provisions of this section.
8) PRICES AND INVOICES The prices indicated in the Orders are fixed and inclusive of all charges, such as taxes, levies, duties, packaging costs, labeling, handling, transportation and shipping, unless otherwise agreed in writing by the Parties. The payment terms shall be those agreed in the individual Orders. Invoices shall indicate the details of the Order, of the transport document and the terms of the agreed payment. The Buyer, subject to the existence of claims or any setoff, shall pay in the agreed forms and terms.
9) STOCK. If required or according to usage, the Supplier shall maintain at its warehouse stocks necessary to ensure the continuity of supplies according to the programs regularly drawn up by Buyer. Stocks, consisting of material tested and properly turn, should be arranged to facilitate the identification and monitoring of the quantities on the part of the Buyer. In the event that the Supplier for objective impediments foresees difficulties in respect of the delivery terms, Supplier shall immediately notify the Buyer that shall pick up the necessary quantities from stocks, with Supplier’s obligation to the immediate reinstatement of stocks once the emergency has overcome. Periodically, the Buyer may communicate to the Supplier stock levels for each product. If nothing is communicated, emergency stocks must be not less than 20% of the monthly requirements indicated in the last supply program. Failing that, the Buyer may apply to the Supplier a penalty equal to 20% of the value of the missing stocks.
In any case of termination of the supply, stocks shall remain the responsibility of the Buyer, only limited to those produced in the month preceding the termination of contract, to the extent mentioned above.
10) CONFIDENTIALITY AND PROPRIETARY RIGHTS. (10.1) The technical or commercial information (for example: drawings, tables, calculations, documents, formulas, correspondence, customer list, models, samples) (said collectively “Information”) furnished to Supplier for designing, testing, development, manufacture products / services, remain the exclusive property of the Buyer, as well as its right to economic exploitation. The Supplier acknowledges that this contract does not grant a license to use the above-mentioned Information. The Supplier undertakes to (i) not disclose, communicate or reveal, throughout the course of the relationship and even after the end, the Information furnished by Buyer, or that Supplier may know in performing the Agreement; (ii) use that Information only to the extent that it is strictly necessary for the proper performance of the Agreement; (iii) return to the Buyer, upon its request, all the above mentioned Information. The manufacture of Products based on drawings, models and samples of the Buyer shall be limited by the Supplier to the ordered quantities of supply and the Supplier undertakes to destroy the possible difference. (10.2) The Supplier agrees to indemnify the Buyer from any liability for the infringement of a third party patent rights or licenses relating to the supplies or Products except if such infringement is the result of following the specifications provided by the Buyer. Supplier hereby grants to Buyer a perpetual, transferable and royalty-free license to use, sell, offer for sale, import, distribute, advertise, market and promote Products (including through packaging, repackaging, labeling, bundling and documentation) that incorporate in whole or in part the patent, copyright, trademark, trade dress or other intellectual property rights of Supplier.
11) FORCE MAJEURE. The Parties shall not be held liable for breaches of contract due to “Force Majeure” provided they are promptly notified to the other party. Persisting for more than 30 days the impossibility of fulfilling the Parties may terminate the contract with immediate effect.
12) INDEMNITIES AND SURETY. (12.1) Supplier shall defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents against all claims, direct and/or indirect damages, liability, losses, fines, or judgments, including costs, attorney fees, and other expenses from claims or losses caused by Supplier’s conduct, relating to or arising out of (i) Supplier’s breach of the Agreement; (ii) any claim connected to death and personal injury, to property damage due to Supplier’s breach of the Agreement and /or to its unlawful act; (iii) the failure of the Products or Supplier's performance of the Services to comply with the requirements of the Agreement, or (iv) any claim related to breach of rights of intellectual property related to the object of the contract. (12.2) In addition Supplier is obligated to provide to (i) procurement of materials and equipment necessary for the implementation of security measures required by mandatory standards; (ii) to require that its employees comply with safety standards and are properly informed and trained about the activities and processes to be implemented in the course of the supply; (iii) to ensure that the materials and components used for the execution of supply are provided with the required and verifiable quality certifications and safety; (iv) to comply with applicable regulations on safety and health of workers, salaries, legal, insurance and social security for workers; (v) Supplier shall maintain commercial general liability insurance, including products and completed operations liability, with limits as requested by Buyer, and workers' compensation insurance as required by law. The Supplier delivers to the Purchaser a copy of the insurance certificate. The breach of any of the above obligations constitutes cause for terminating the contract, without prejudice to damages and, in any case, will entitle the Buyer to suspend PERFORMANCE of the Agreement.
13) LIMITATION OF LIABILITY ANY LIABILITY OF BUYER FOR LOSSES AND / OR DAMAGES AND / OR COSTS AND / OR INTEREST, ASCERTAINED IN ACCORDANCE WITH THE APPLICABLE LAW AS SET IN SECTION 15, SHALL NOT EXCEED, IN ANY CASE, THE PRICE OF THE SUPPLY THAT HAS GIVEN RISE TO THE CIVIL CLAIM. Buyer shall not be liable for special, incidental, indirect, punitive, or consequential damages, including loss of anticipated profits or business interruption, interest charges or penalties of any description.
14) TERMINATION AND EFFECTS. Buyer may terminate anytime the Agreement in whole or in part upon 30 days’ written notice to Supplier without being liable to pay any penalty. The Buyer may terminate the Agreement, subject to the right to compensation for all damages, if the Supplier: (i) provides delayed goods and / or in a manner not in accordance with the requirements of the Order; (ii) provides missing quality, defective or spoiled or incomplete Products (iii) does not maintain the necessary stocks; (iv) make changes to Products without the written consent of the Buyer; (v) defaults in the performance of its obligations under the Agreement and does not cure the default within 15 days following Buyer’s notice; or (vi) is subject to bankruptcy, insolvency or enforcement proceedings. Upon termination of the Agreement, Supplier must immediately: (i) return the molds, equipment, projects, fact sheets, Information and whatever property of Buyer that is in Supplier’s possession; (ii) cease production of the Products, (iii) prepare an inventory of Products and stock, (iv) carry out pending confirmed Orders and (v) fulfill all of the requirements for timely deliveries. Buyer shall not owe Supplier any lost profit or payment for any materials or Products that Supplier may consume or sell to Third Party in its ordinary course of business.
15) GOVERNING LAW. JURISDICTION. COMPLIANCE. The Agreement and all rights and duties under the Agreement are governed by, and construed in accordance with the Laws of the State where Buyer’s headquarters is located. The jurisdiction is determined in accordance with the applicable Law. Supplier must comply with all Buyer’s Policies applicable to Supplier, including without limitation, Code of Business Conduct and others Policies located at Company’s website.
16) PERSONAL DATA The Parties mutually acknowledge that each of them will treat the “personal data” of the other in accordance with the provisions of current legislation governing the protection of personal data, for the sole purposes of execution of the Order and those required from Law and Italian Legislative Decree. n. 196/03 and subsequent additions and modifications. The Buyer declares that owner of the treatment is itself at the head office.
17) ANTI-CORRUPTION. The Supplier represents and warrants that Supplier shall conduct its activities in accordance with all national, international or CE applicable laws, rules, regulations and orders related to anti-bribery or anti-corruption legislation including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977. Accordingly, Supplier shall make no offer, payment or gift, will not promise to pay or give, and will not authorize, directly or indirectly, the promise or payment of, any money or anything of value to any Buyer employee or agent, any government official, any political party or its officials, or any person while knowing or having reason to know that all or a portion of such money or item of value will be offered, given or promised for the purpose of influencing any decision or act to assist Supplier or Buyer or otherwise obtaining any improper advantage or benefit.
18) GENERAL PROVISIONS. The invalidity of any provision contained in the Agreement shall not affect the validity of any other provision. Buyer's failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege. The Agreement may be modified only by a written instrument separately signed by the Parties. Supplier shall be solely responsible for the engagement and management of any subcontractors in the performance of Supplier’s obligations and Supplier guarantees the performance of any subcontractor used in the performance of this Agreement.