1) DEFINITIONS In the relationship governed by these general conditions of purchase of raw materials (GCP-CP) shall be: “Purchaser”, the company Zhermack S.p.A., with registered office at Via Bovazecchino 100 – 45021 Badia Polesine, Rovigo – Italia; “Supplier”: the company or natural person which will supply/sale to Purchaser a product; “Parties”: the Purchaser and the Supplier; “Product”: the chemical product of synthetic or natural origin in its original or modified structure sold/supplied respectively by Supplier and bought/accepted by Purchaser; “Packing”: any kind of package of the Product; “Purchase Order” (PO): the document issued by Purchaser in which are indicated the conditions of supplier, integrated with this GCP-CP and according with “ORDACQ” model; “Order Confirmation” (OC): the document issued by Supplier where it undertakes to supply the Product indicated in the PO under the conditions established and according with this GCP-CP. “Additional quantity of product supplied”: is the quantity of product supplied in excess in relation to that one ordered in the PO.
2) OBJECT This GCP-CP governs in exclusive all the purchase of Product made by Purchaser.
3) ACCEPTANCE OF THE GENERAL CONDITIONS OF PURCHASE Supplier, through send off Purchase Order, accepts unconditionally and engages itself to follow, during the relationship with Purchaser, this GCP-CP and declares to know it and to accept it entirely, conscious that Purchaser shall not be bond by a different conditions of purchase without a previous written authorization, otherwiseit shall be considered void.
4) FORMATION OF THE CONTRACT The contract shall be considered concluded if Supplier sends to Purchaser written acceptation of Purchase Order that shall be irrevocable for Supplier, even if Purchaser preserves the right to revoke the PO. The contract shall be considered concluded when will arrive to Purchaser the written order confirmation made by Supplier. Orders and/or amendments are binding only if Purchaser makes them in writing through the PO and if Supplier, for each incorporation/amendment of the PO, sends to Purchaser the Order Confirmation with the incorporations/amendments made. Supplier accepts to use email and fax for sending off Purchase Orders, to the address indicated for its reception. The Supplier undertakes to ratify the actions of its own employees and representatives whose send the OC. The OC could be sent by email or fax to the address indicated in the Purchase Order to the attention of “Gruppo acquisti”.
The Parties agree that the right of property of Product shall pass from Supplier to Purchaser when the last one receives the OC and, if the Product is a future thing, in the moment when it exists. Purchaser has the right to terminate the contract before the acceptation of the Product. It is forbidden to Supplier to yield the contract.
5) DELIVERY “delivery” shall mean put into Purchaser’s disposition the Product indicated in the Purchase Order under the terms agreed, according to this GCP-CP.
6) TERMS The delivery terms indicated in this GCP-CP and in the PO are interpreted in accordance with the Incoterms 2010 of the International Chamber of Commerce. In case of lack of indication of a different term, it shall be applied the clause DDP - Delivered Duty Paid until Purchaser’s placeof business - Incoterms 2010. In case of application of the clause CIP Incoterms 2010, Supplier undertakes to stipulate at its own charge an insurance that shall cover also the particular risks that are typical in the Product, taking in consideration the type of transport used.
In case of delivery by carrier, Supplier undertakes to give a timely written communication on Product’s delivery made to carrier, with precise indication of carrier’s data.
Supplier undertakes to adopt any necessary care to maintain unmodified the feature of the Product during transport.
Supplier assumes the risk of loss/damage of the Product, even if it is not its responsibility and if it was different agreed in the PO, until the moment of acceptance of Product by Purchaser, also in case of separate delivery and if the Product should be conserved/stocked at Supplier’s place or nearby thirds waiting to be delivered
All delivery terms indicated in Purchase Order are considered binding and essential for Purchase’s interest, according to art. 1457 of the c.c., therefore the anticipated or delayed delivery is not accepted. In case of delayed delivery even if is only a part of the Product ordered, the Purchaser shall have right, through written communication to Supplier, to terminate the contract in whole or in part for such supplies do not delivery in the indicated terms, without notice to perform it and, except and unprejudiced the right to further damages, the Supplier undertakes to compensate Purchaser for any damage and/or cost derived from the delayed or anticipated delivery.The part of the Product ready for delivery before that it should be authorized, will be conserved at Supplier’s charge and care.
7) DOCUMENTS AND PACKING Supplier undertakes to support Purchaser in any request of documents, to get and to transmit timely to Purchaser, at its own charge, all necessary documents for the exportation-importation according to the delivery terms agreed, as well as all authorizations, as well as all authorizations, licenses and certifications in relation with the Product and its safety necessary for the authorization to produce and deal it, as well as the homologation in the country/countries that receive the exportation and to keep Purchaser free of liability for any failure on the fulfillment of the red tape formalities. Supplier undertakes to get and to transmit to Purchaser at its own charge, the certification of the chemical/physique analysis of the material and the documents of test, such as the analysis of laboratory and the declaration of conformity, with the finality to guarantee the quality of the Product.
Supplier undertakes, in particular, to transmit timely to Purchaser the technical file of the Product up-to-date, to send safety file up-to-date after any possible modification of it, to identify the number of lot of production of the single lot that composes the Product sold/supplied by manufacture and/or Supplier and to attach the certificate of analysis for any single lot of production.
Any charge for packing should be put at Purchaser’s charge, the cost is understood as comprised in the Product’s purchase price agreed, except for a prior written derogation; in any case, in case of sale by weight, the cost of the packing should not be calculated by weight at the same price of the Product.
The packing shall be made in accordance with the experience of use and with the type of transport foreseen or to be foreseen and, Purchaser shall not be responsible in case of loss and damage for non-accurate transport and handling. Supplier undertakes to follow the particulars indications of packing specified by Purchaser in Purchase Order.
In case of supply with pallets, Purchaser conserves the right to return the pallets within 1 year from delivery at Supplier’s charge.
8) QUANTITY If the quantity of the Product supplied is lower or higher of that one ordered in the Purchase Order, Supplier has the right to refuse, in whole or in part, the delivery and/or to accept it, otherwise, Supplier has the duty to withdraw immediately the Product refused.
Purchaser should purchase the quantity of the Product supplied in excess, at its own choice, under the same sale conditions to which it was delivered the Product or to those enforce at delivery time, sending the PO to Supplier. In case that the PO will not be sent, the quantity of the Product supplied in excess shall be at Supplier disposition to be removed also if it was previously stocked by Purchaser. If the quantity of the Product supplied in excess still after 30 days at Purchaser place of business, without been removed or sold, Purchaser should, at its own choice, destroy it, sell it or stock it at Supplier’s charge. In any case Purchaser should not have any liability of custody for the quantity of the Products supplied in excess and provisionally stoked in its warehouse, waiting to be removed.
In case of difference between the quantity declared at delivery time and the effective quantity, as indicated in the itemized list made by Purchaser at the end of the use of the Product, which will be a certification between the parties, Purchaser shall send to Supplier a debit note equal to the cost of the fail Product and at the price indicated in the OC. If Supplier does not answer the debit note within 2 months from its transmission it will be knowledge as accepted.
9) PRODUCT’S ACCEPTANCE: PRODUCT’S TEST, NOTICE OF DEFECTS AND NON CONFORMITY, PRODUCT’S ANALYSIS The Supplier undertakes to give prior notice of any change in the specifications of the product, so that the Purchaser can accept them or not. Any supplies of products, whose specifications are different from those agreed, will not be accepted.
The Product’s acceptance will be made after 15 working days since the entry of the Product at Purchaser’s place of business (Purchaser’s warehouse receipt will certify it), during this time shall be made the quality test of the Product. The Product is kept by Purchaser at Supplier’s charge and risk until the acceptance of it and, in case of non-conformity, it will be a Supplier’s disposition, until its withdraw, for the contra-analysis. The Product’s withdraw and contra-analysis shall be made within 30 days from the non-conformity notice. The lack to carry out the analysis within the indicated terms should be understood as accepted the analysis made by Purchaser, whereas the lack to withdraw the Product in the above indicated term should be understood as an authorization to get through/to sell/to destroy it at Supplier’s charge.
In case of non-conformity of the Product with the PO, with the chemical analysis of the lot and/or with the technical file of Supplier and/or with the detail indicated by Purchaser and/or with the industrial use of Purchaser, Purchaser could claim the quality within a reasonable time from the date of the test made to the Product and, anyhow, within 90 days from the moment that Purchaser has discovered the hidden defect’s discovery and, in every case, from the beginning of Product’s working.
Purchaser will send to Supplier a report, within September 30 of every year, regarding the non-conformity of Product supplied claimed the previous calendar year. The lack to answer the report of non-conformity within 2 months from its transmission to Supplier should be understood as accepted and, all cost, expense and damage in relation to it will be at Supplier’s charge.
The Product and/or the supplied Product, that is not accepted by Purchaser shall be immediately substituted or modified at Supplier’s charge, excepting if Supplier desires to buy it from other supplier at Supplier’s charge. Supplier shall put the Product that has been substituted at Purchaser’s order for a new test of quality.
Supplier undertakes to put at Purchaser’s order all the necessary tools, equipments, structures, services and materials to carry out the test of quality. The acceptance of the Product and the test of quality made by Purchaser, do not release, in any case, Supplier from the obligations derived from the contract, including without limitation, its liability for possible non-conformity of the Product subsequently claimed.
Supplier shall collaborate with Purchaser in all the necessary actions to carry out the test of the Product, in order that Purchaser can be able to accomplish all tests and analysis of the Product in accordance with the supply process of article 7.4 of UNI EN ISO 9001:2008.
10) DEFECTS AND WARRANTY Supplier guarantees that the Product supplied is not under retention of title, that it is made in accordance with the description indicated in the PO, in the technical note communicated to Purchaser, in the technical file of Supplier, in the analysis of laboratory supplied with each single lot and in any other document considered necessary in the normal usage.
Supplier shall act with reasonable care in the performance of its activity to guarantee the delivery of a safe Product, that in normal condition of use, do not give any risk or give the minimum risk in relation with the use of the Product, also after its predictable manufacture, or risks that are considered acceptable observing an high level of health and security for the people, with particular consideration to the destination of Product to the dentist and orthodonticarea. Supplier shall also supply to Purchaser the necessary information useful for the valuation and prevention of risks derived from the normal use of the Product.
Supplier guarantees the Product of any defect or lack of quality, that has been consequence of a defect of project, material or performance and in particular, against any defect or lack of quality chemical- physic according to the technical file, to the certificate of analysis of any single lot and to the specific failure indicated by Purchaser on the application with reference to the application of Purchaser.
In case of lack to indicate the date of expiration of the Product in the OC and in the delivery, the expiration period shall be understood of minimum 5 (five) years from the delivery date and, anyhow, the expiration of the Product should not be inferior to the two-third partyof the useful life of the Product, calculated from the date of production.
Supplier undertakes to collaborate with Purchaser to manage and resolve any possible claim of the Product, derived from the supply of Product made by Purchaser to its clients, also in case that those claims came from foreign countries.
In case that Supplier does not give remedy, in a reasonable time, to the defect in conformity with this clause, or in case that the remedy, for particular reasons, will be unattainable by Supplier, Purchaser will resolve the defect directly or through other supplier at Supplier’s charge.
11) PRICE AND PAYMENT the price of the Product shall be indicated in the list of price approved between December 31 and valid during all the successive calendar year.
The payment of the price shall be made in the terms and in the formality indicated in the OC and, except other agreement on the currency, in Euro, excepting the right of Purchaser to pay the price in the Supplier’s currency at the quotation at the moment of the expired payment.
If the price of the Product came from quotation, list of price or from stock exchange, the agreed price will be understood as the highest price, except the possibility for Purchaser to pay the minimum price resulted from the quotation of the Product at the moment of the expired payment. Supplier shall send to Purchaser an invoice with the quantity and the price indicated in the Purchase Order, and also with the code, the description and the delivery date of the Product supplied; in case of difference between the information indicated in Purchase Order and in the invoice, shall prevail the first one, also if the second one have not any claim.
In case that should be agreed a discount or bonus for overcome in the quantity of the Product ordered, Supplier shall issue a credit note at Purchaser name within 30 days from the overcome of Product ordered; in case of lack in the issue of the credit note within the indicated term, Purchaser will send to Supplier a debit note.
It is forbidden to Supplier to yield the credit and to issue bill of exchange for the payment of the supply. In any case, if the bill of exchange is issued and is not removed, Supplier shall be responsible for any damages derived from the lack to withdraw it.
12) TERMINATION Purchaser shall have full right to terminate the contractual relationship born with the PO, at any time, through written communication sent to Supplier, expressing its intention to use this clause of termination in case of breach of one or more of the obligations established in articles 3-4-5-6-7-8-9-10-11-14-15-16-17-18-19-20. Purchaser, shall have also the right to terminate the current relationship of supply, if it has claimed in written to Supplier the breach of any other obligation not indicated in the above articles and Supplier have not put remedy within the term indicated in the Purchaser’s invitation to perform it. Purchaser shall have also the right to terminate any of the current relationship of supply without prior notice, if Supplier give in sub-supply the production of the Product, if it is in bankruptcies, composition with creditors or other collective creditor action.
13) FORCE MAJEURE In case that Purchaser and Supplier should not be in capacity to fulfill whatever of the obligations agreed for cause of irresistible force such as, for example, fire, flood, war and strike, which could not be foreseen, avoided or overtake with a normal care, they are not obligated to made compensation for damages and costs. The party that has the impossibility of performance shall immediately inform the other party by written, calculating the duration of the impossibility, and shall do everything to avoid any other delay and to carry out its obligation.
14) KNOW-HOW In accordance with article 39, section 7, of the TRIP’s Contract, Supplier undertakes not to disclose or to divulge to thirds parties the information in relation with the know-how as well as all the information, experience and knowledgeof Purchaser’s business, which should know during the negotiation, the performance of the contract and in the business meeting, also comprised the information regarding the failure of product, its installation, its mode of production, the other business property as well as the organization of the production and the business, the business services, the commercial initiative and the clients, the management and ruling of the business, the relationship with thirds parties etc. The above-indicated information shall be considered confidential and shall not be used directly or indirectly by Supplier except for the correct performance of the contract. Supplier undertakes to take any reasonable care to keep these information as confidential, disclosing it just to its own employees, collaborators or advisers that should know it for the performance of the contract, binding them to the respect of the terms and of the conditions of this clause. During this contract and after its termination Supplier shall not disclose, publish or divulge, copy, imitate or use in any way part of the know-how of Purchaser’s property. Supplier warrants not to know industrial property rights or intellectual property rights of thirds parties that its goods and service could interferer.In any case, Supplier shall keep Purchaser free of claims of thirds parties for the breach of their intellectual or industrial rightsduring the supply of Product.
15) INSURANCE, LICENCE, SECURITY MEASURE Supplier undertakes to make the insurance cover of law for the activity of its workers, employees, collaborators, to acknowledge the respective contract of employment, as well as to allow Purchaser to control the respect of it.
16) LIABILITY FOR ACCIDENT TO PERSONS AND DAMAGES TO THINGS Supplier undertakes to keep Purchaser free of chargeand to stipulate an insurance policy for any event and pecuniary evaluation coming from the action of thirds parties and in relation with hypothesis of liability for damage caused by a defect product. Supplier undertakes not to object the dropping of Purchaser from a possible legal process.
17) CLAUSE OF ETHIC Supplier warrants to Purchaser that the productive process look up to human rights, children and women rights, as well as to the environmental rules and the code of conduct in accordance with the Legislative Decree of June 8, 2001 n° 231.
18) LINGUA The original version of these general conditions is in Italian language.
19) APPLICABLE LAW These general conditions are governed by the Italian laws in force and by those applicable to import of chemical substances and preparations (REACH, CLP).
20) ARBITRATION Any dispute arising from the relationships between the parties to this contract shall be determined in accordance with the Arbitration Rules and Internal Rules of the European Court of Arbitration being part of the European Centre of Arbitration and having its seat at Strasbourg, and which are in force at the time the application for arbitration is filed, with right of appeal by way of rehearing by an appellate arbitral tribunal as provided by the Rules, and which adoption of this clause constitutes acceptance by three arbitratorswho will be chosen according to the provisions of the said Rules. The place of Arbitration shall be Verona. Language of the proceedings and the applicable rules of substantive law shall be the Italian one, even comprise the Convention of Vienna on international sale of goods.
DISCLOSUREprovided for by art. 13 of D. Lgs. n. 196/03 (“Privacy Code”)
According to D. lgs. June 30, 2003, No 196 ("Code regarding the processing of personal data”, below "Privacy Code"), we wish to inform you that, in the ordinary course of contractual relations and in accordance with the provisions of the Privacy Code, our Company ZHERMACK SpA processes personal data that concern you.
Personal data are all information relating to individuals, corporations, institutions and associations identified, even indirectly.
To comply with the legislation on personal data protection under art. 13 of the Privacy Code, we wish to inform you of the use of your personal data and of your rights.
1. Purposes of processing personal data.
The personal data that concern you are treated, within the ordinary activities of our Company, for the purposes described below and related to the management and organization of our relations with suppliers:
(i) management of suppliers (supplier management; administration of contracts, orders, deliveries and invoices; selection in relation to company requirements);
(ii) management of litigation (breach of contract; transactions, debt collection, arbitration, litigation);
(iii) in general, for a better functioning of relations connected with contracts with suppliers.
2. Categories of personal data processed.
The personal data are those related to the enforcement of contractual obligations and, in particular:
- identification, tax, banking, financial and organizational information.
3. Processing methods.
The data that concern you are those provided by you and are processed by persons specifically responsible for processing and responsible for managing relationships with suppliers, using manual, computerized and telematic tools. The processing is carried out only by forms of organization that are closely related to the necessary obligations, responsibilities and objectives of that processing. The process used ensures the confidentiality and security of information.
4. Compulsory or optional nature of giving personal data and consequences of a possible refusal.
With regard to the nature of the data and the purposes of processing, the transfer of your personal data must be considered necessary for the carrying out of contractual obligations with suppliers.
If personal data are not provided, contracts can not have a regular course.
5. Subjects to which data can be communicated.
In compliance with legal obligations or to discharge the obligations under the agreement, the Company finds it necessary to disclose some personal data which concern you.
In particular, your personal data may be communicated to the tax offices and consultants for any assistance in litigation.
The above mentioned information shall be provided in compliance with legal obligations or regulations or to assert or defend a right in court.
In addition, to carrying out its contractual obligations, the Company finds it necessary to communicate your data to banks and banking institutions.
Finally, the Company, which is part of a multinational Group, may, for the purpose of necessary coordination, disclose personal data relating to your economic activities (for example, membership of industry sector, products, economic conditions, etc. .) to other companies that are part of the Group. Transfers of data outside the EU, where some companies of the Group have offices, will take place in accordance with art. 43 of the Privacy Code.
The above-mentioned subjects, to whom your personal data will or may be disclosed, will process personal data as Holders of the data pursuant to art. 28 of the Privacy Code, independently, not being connected to the processing carried out by the Company.
A detailed and constantly updated list of these subjects, indicating their respective offices, is always available at the Data Processing Manager at the address below.
6. The rights of art. 7 of the Privacy Code.
Article 7 of the Privacy Code gives specific rights to the parties concerned. In particular, the user can obtain from the Holder the confirmation of the existence or otherwise of their personal data and that such information must be available in a comprehensible form. The party can also ask to know the source of the data and the logic and purpose of processing; to obtain the cancellation, transformation in an anonymous form or block of data processed in violation of the law and the updating, correction or, if necessary, the integration of data; to oppose, for legitimate reasons, to the processing itself. To exercise these rights you can contact the Data Processing Manager at the address below.
7. Data Holder and Processing Manager.
The data Holder is ZHERMACK SpA, established in Badia Polesine (Rovigo) Italy, Via Bovazecchino No 100. The Manager of Accounts Payable is responsible for processing personal data relating to suppliers, who can provide you with an updated list of the other data processing Managers.