Order confirmation and acceptance
If no framework agreement or specific contract has been stipulated between CUSTOM and the CUSTOMer, the sale of products and services by CUSTOM shall be exclusively governed by these General Conditions of Sale for Products and Services. Any changes, amendments, exceptions and/or deletions may only be made in writing and shall be expressly approved by CUSTOM.
The General Conditions of Sale for Products and Services are an integral and essential part of any offer or order confirmation sent by CUSTOM. Any such offer, order confirmation or other types of documents would be void and null without the said General Conditions, since essential elements for representing CUSTOM's will would be missing.
Any purchase order made by a CUSTOMer requires that the same CUSTOMer acknowledges and agrees to these General Conditions of Sale for Products and Services. Even in the event that the CUSTOMer does not expressly and formally agrees hereto, their acknowledgement and acceptance shall always be deemed received. On the other hand, any denial or non-acknowledgement of the said General Conditions shall render the contract null and void.
CUSTOM shall not be bound by any terms and conditions other than these General Conditions of Sale for Products and Services, there including any terms and conditions which may be part of the CUSTOMer's orders or purchase conditions or that constitute the CUSTOMer's general purchasing conditions; any such terms or conditions shall always be considered non-written, void and null and in any case not accepted by and not opposable to CUSTOM.
In addition, CUSTOM shall not be bound by any other conditions that may have governed previous purchases and/or transactions with the CUSTOMer.
Know-How Protection - Confidentiality
CUSTOM is and shall remain the sole owner of the industrial property rights and know-how rights incorporated in the Products and Services. The management software packages and the firmware embedded in the products are always provided with a temporary user's licence, which can be revoked at any time in the event of encrypting attempts or improper or illegal use by the CUSTOMer. The CUSTOMer undertakes to handle as strictly confidential any technical and commercial information, as well as any other confidential data that may come to their knowledge during the term of the contractual relationship. All technical or commercial documents, drawings and designs that CUSTOM may forward to the CUSTOMer within the scope of the contract performance shall be subject to the same confidentiality obligations.
If third parties involve CUSTOM in legal actions concerning information and/or data provided by the CUSTOMer to CUSTOM in breach of industrial property rights or know-how rights or trademarks and/or patents, the CUSTOMer shall release and hold CUSTOM harmless against any third parties' claims for damage compensation and against any direct and/or indirect costs, there including legal expenses incurred in connection therewith.
If the CUSTOMer breaches the provisions of this paragraph, CUSTOM reserves the right to withdraw from the contract, as set out in paragraph "Withdrawal".
Delivery – Transportation – Assignment of Title
The delivery terms shall be EXW (ICC Incoterms 2020) unless other specific agreements have been stipulated. The delivery terms may be the subject of a different agreement between the parties, which will result in the order confirmation. The risk of loss or the risk of damage and the ownership title pertaining to the Products shall be transferred from CUSTOM to the CUSTOMer in compliance with applicable Incoterms.
CUSTOM undertakes to observe the delivery deadlines indicated in the order confirmation. Such deadlines, however, shall not be considered binding but merely indicative.
Quality of the Goods
All CUSTOM's Products are made using new materials, following the best manufacturing procedures and are subject to quality control plans. Any conformity and/or test certificates shall be requested by the CUSTOMer in advance and shall be expressly accepted by CUSTOM in the order confirmation. Any Product tolerances and/or variations, connected with the nature of the same Product or with upgrades of the components made by sub-suppliers based on standard industrial practices shall not involve any responsibility for CUSTOM.
Liability for Product Faults and/or Defects
Considering that the use and/or installation of the Products by the CUSTOMer are subject to a large number of variables (intended use, compatibility with the system/machine on which they will be installed and used, storage conditions etc.) that CUSTOM cannot control and on which CUSTOM has no power to act, CUSTOM:
- shall not assume any liability in relation to the use or final intended use of the Product sold, for which the CUSTOMer acts and decides in full autonomy and awareness, and being any testing the sole responsibility of the CUSTOMer;
- may not be held liable for any Product faults and/or defects arising in connection with incorrect or improper use, negligent storage, improper application and/or installation, maintenance operations performed by non-authorised third parties, or deriving from chemical and/or mechanical and/or electrical causes that do not relate to the Product.
Subject to the aforementioned events in which liability is excluded, the Products are covered by a warranty against manufacturing and materials' defects for a period of one year as of the shipment date ("Warranty Period"), on condition that they have not been modified and that they are used in normal conditions and in compliance with their specifications.
CUSTOM obligations in the event of faulty Products shall be limited to the repair or replacement (at CUSTOM's sole discretion) of the Products involved. The CUSTOMer shall be responsible for all shipments to CUSTOM and shall bear all the costs and risks associated with this transport; return shipments to the CUSTOMer shall be borne by CUSTOM. The CUSTOMer shall not be charged for the spare parts used for repairs under warranty. The CUSTOMer shall be responsible for the costs incurred for Products that are not entitled to be repaired under warranty, as well as for the costs of any product return shipment if CUSTOM establishes that there is no fault nor defect.
Disclaimer And Limitation of Liability
In no event shall CUSTOM be liable for any damages related to the Products, Services or their use, except as provided by law.
Subject to the above clause, the greatest overall liability that CUSTOM may assume in relation to the CUSTOMer shall be limited to the net total value of the order with which the liability event is connected.
Under no circumstance may CUSTOM be held liable for profit losses and/or gain losses, and/or loss of working contracts or business opportunities, and/or for cost increases, and/or for consequential, indirect damages or for “special losses or liquidated damages”.
Each of the aforementioned provisions that excludes or limits CUSTOM's liability shall be enforced separately. If any of such provisions is judged unreasonable or not applicable by a Court, the other provisions shall remain applicable.
The payment of the fee for the Products or Services must be made as a result of the inherent invoice issued by CUSTOM, in the manner indicated therein. In case of delay in payment with respect to the agreed deadline, without the need for formal notice, CUSTOM reserves the right to suspend the defaulting CUSTOMer with respect to payment obligations from access to the Portal or Services, for the duration of the default. CUSTOM reserves the right to bring an action for further compensation.
CUSTOM may withdraw from the contract at any time and may stop deliveries without incurring any penalties and/or indemnity payments if the CUSTOMer is involved in protests, warning procedures, bankruptcy proceedings, also of an extra-judicial nature, payments in arrears, as well as if it violates the provisions of the paragraph "Know-how Protection - Confidentiality. The notice of withdrawal shall automatically make the acceleration clause applicable to the CUSTOMer, who shall be bound to immediately pay the Products and Services still unpaid.
CUSTOM shall not be liable for any delay in, or failure to comply with, any or all the contractual commitments, where such delay or failure to comply is due to any event not attributable to CUSTOM’s will and beyond its reasonable control, including, for example, natural disasters, riots, insurrections, acts of public authority, fires, shortage, or excessive increase in the cost of energy, fuel, components, machinery, or raw materials. If the above circumstances occur, CUSTOM shall promptly notify the other party in writing. If the suspension of the benefit lasts longer than 180 (one hundred and eighty) consecutive days, the other party will have the possibility to cancel the order placed and will be refunded of the amounts already paid.
If the performance of one of the parties becomes excessively onerous due to the occurrence of extraordinary events, not attributable to the party and beyond its reasonable control, the parties are required to negotiate new contractual conditions that reasonably take into account the consequences of the extraordinary event. In particular, the shortage or excessive cost of energy, fuels, components, machinery or raw materials, the significant increase in inflation, as well as the considerable increase in transport costs are considered extraordinary events. The party invoking this clause must notify the other party within a reasonable period, making clear the extraordinary event that occurred. If the parties fail to reach an agreed renegotiation of the price, the party owing the performance that has become excessively onerous has the right to terminate the contract and won’t be able to request its adaptation to the judge or an arbitrator without the consent of the other party.
Code of Ethics and Corruption Prevention Policy
The Parties undertake to comply with applicable Anti-Corruption and Anti-Bribery laws, as well as to the Code of Ethics and Corruption Prevention Policy adopted by CUSTOM.
Processing of Personal Data – Leg. Decree 2003/196 and Reg. EU 2016/679
Governing law - place of jurisdiction
CUSTOM's sales shall be governed by the General Conditions of Sale for Products and Services, and by the Laws of Italy for anything not expressly provided for therein. Leg. Decree 232/2002 and the Italian Civil Code (article 1470 and the following relating to sales) shall apply.
Any controversy which may arise in connection with the interpretation and/or performance of any contracts for the sale of Products and Services by CUSTOM shall be referred to the exclusive jurisdiction of the Court of Parma.