General Terms and Conditions of Sale

These General Terms and Conditions of Sale (hereinafter, the "Conditions") apply to the B2B sales and deliveries of the Products (as defined below) between Bitoner Italia S.r.l., with registered office in Viale Rimembranze 21/13, 20045 - Lainate (MI), Italy, VAT No. and fiscal code 13167620965, REA Number: MI – 2706489, corporate capital 10.000 Euro. (hereinafter, "Bitoner") and the Buyer (as defined below).

1. Definitions

1.1. “Buyer” means any “professional”, within the meaning of Section. 3, paragraph 1, letter c) of the Legislative Decree No. 206/2005 as subsequently amended, purchasing the Products from Bitoner.

1.2. “Dispute” means any dispute, controversy, claim arising out of, relating to, or having any connection with the Conditions, the Agreement, and the subject matter thereof, including any dispute regarding the existence, formation, validity, interpretation, performance or termination of the Conditions or any Agreement or the consequences of their nullity and also including any dispute relating to any non-contractual rights or obligations arising out of, relating to, or having any connection with the Conditions, the Agreement, and the subject matter thereof.

1.3. “Force Majeure Event” means any event or circumstance not reasonably foreseeable and beyond the reasonable control of a party or which, even if foreseeable, could not have been avoided by resorting to the diligence, prudence and skill of a reasonable and prudent operator, including but not limited to, fire, explosion, earthquakes, natural disaster, lightning, acts of vandalism and/or terrorism, embargoes or blockades, system failures, revolutions, riots, wars, coups d’état, lockouts, strikes and other workers’ unrest directly related to the parties’ work organisation as long as they are called at national level, excluding strikes dependent on disputes of an exclusively corporate nature, interruption of energy flows, interruption or failure of utility services, shortage of raw materials on their potential supply markets, or faults or breakdown of plants or production units, disruption or congestion in the supply chain ports, laws, orders, regulations, directives or administrative measures (including the so-called factum principis).

1.4. “Bitoner’s Intellectual Property” means all intellectual property and/or proprietary rights, technical information and data of all kinds, whether registered or unregistered or subject to statutory protection or not, included in or related to the Products or Bitoner, such as without limitation, trademarks, inventions, patents, copyrights, designs, know-how and trade secrets, or other confidential or proprietary information, either where created or acquired by Bitoner prior or after the execution of the Conditions and/or any Agreement.

1.5. “Confidential Information” shall mean any and all proprietary, confidential or other non-public information and items disclosed by Bitoner (whether verbally or in documents, items, drawings, brochures, specifications, schedules, models, products, or by observation of manufacturing or other operations, or in any other manner) or in the possession or under the control of the Buyer that is learned during the performance of the Agreement. Confidential Information may consist of written, oral, electronic or other forms of information, including, without limitation, all business and financial information, marketing and strategic plans, organizational matters, analysis, reports, technologies, designs, drawings, production or product specifications, processes, plans and/or operations, other production or product know-how, information relating to the technical, business or operational affairs of Bitoner; Confidential Information shall also include any analyses, notes, compilations, studies, reports, organizational matters, specifications, processes, plans and/or operations, or other know-how, or any other documents or materials prepared by Buyer or its representatives that incorporate, reflect, or are derived from or based upon the Confidential Information. Confidential Information also includes information that Buyer may have learned or received in any preliminary discussions it may have had with Bitoner.

1.6. “Order Confirmation” means the confirmation – made in writing – of the Order issued by Bitoner.

1.7. “Order” means the order – made in writing – placed by the Buyer for the purchase of the Products, whether or not by way of an acceptance of Bitoner’s quotation.

1.8. “Products” means the products (including any part and accessory thereof) and/or material sold by Bitoner in accordance with Bitoner’s quotation or Order Confirmation.

1.9. “Taxes” means duty, charge, tariff or levy whether direct or indirect, imposed from time to time by any government or other authority and any related interest, penalty, fine or other amount.

1.10. “VAT” means value added tax or any replacement or overseas equivalent of value added tax or similar sales tax.

2. Object

2.1. The Conditions shall apply to all sales of the Products by Bitoner to the Buyer and shall prevail over any terms and conditions or other contractual documentation of the Buyer, whether issued before or after the date of the Conditions or whether attached or referred to in any Order, unless Bitoner has expressly and specifically consented to their applicability and validity. This consent requirement shall apply in any case.

2.2. The sale of the Products shall be regulated on an exclusive basis by the Conditions, by the Order and by the Order Confirmation, which shall jointly constitute the entire agreement governing the sale of the Products by and between Bitoner and the Buyer (hereinafter, the “Agreement”) and shall prevail over any previous oral or written agreement between the parties having the same subject matter.

2.3. The Conditions shall be deemed to be accepted in full by the Buyer with the issuance of an Order.

2.4. In case of conflict between the terms of the Conditions and the particular terms specified in an Order Confirmation, the latter shall prevail.

3. Order and Order Confirmation

3.1. The Order shall be deemed to be an offer by the Buyer to purchase the Products and shall be made in writing.

3.2. Bitoner’s offers serve as invitations for the Buyer to make an Order to purchase and they are given without any commitment and, therefore, no undertakings, obligations or liabilities shall arise therefrom for Bitoner. A Bitoner’s offer shall be valid for the period specified therein and shall become ineffective if the Buyer does not accept it within the abovementioned term by sending an Order strictly consistent with the quotation.

3.3. The Agreement between Bitoner and the Buyer shall in any event be formed only following the receipt of Bitoner’s Order Confirmation by the Buyer. Possible down payments of the Buyer shall not constitute acceptance of the Order by Bitoner and they will be returned to the Buyer in case Bitoner does not issue any Order Confirmation.

3.4. Any changes requested by the Buyer subsequently to the issuance of the Order Confirmation are subject to a further written confirmation by Bitoner.

3.5. Order cancellations are permitted only within 48 hours from the date of issuance of the Order Confirmation.

4. Delivery

4.1. The Products shall be delivered in the quantity, place, and time indicated in the Order Confirmation.

4.2. Bitoner will use its reasonable endeavours to deliver the Products in accordance with the delivery terms agreed by the parties and subject to stock availability and production and shipping capabilities. In any event, the terms of delivery, even if included in the Order Confirmation, are only estimates and merely indicative and not binding. Furthermore, delivery terms remain suspended for fortuitous events and Force Majeure Events. Any delay cannot be regarded, in any circumstances, as a ground for the suspension or interruption of payments by the Buyer and, to the maximum extent permitted by the applicable laws, Bitoner shall not be held liable for any damage or costs arising from any delay in delivering the Products.

4.3. The quantities ordered by the Buyer shall have a tolerance of +/- 5%. Therefore, Bitoner may deliver the Products with a weight, quantities or volume that varies within +/- 5% from the wight, quantities or volume indicated in the Order Confirmation. The Buyer undertakes to pay for the quantity actually delivered at the agreed price, regardless of the quantity stated in the Order Confirmation.

5. Retention of title

5.1. Unless expressly agreed otherwise in writing, the sale of the Products under the Conditions and any Agreement is subject to a retention of title in favour of Bitoner. It is agreed by the parties that the title to any Product shall remain vested with Bitoner until the relevant Product has been fully paid by the Buyer, notwithstanding the delivery of the same Product to the Buyer and the relevant passing of the risk.

5.2. Until the title of the Products is transferred to the Buyer, the Buyer shall: (i) keep the Products with the utmost and professional diligence; (ii) keep the Products free of any pledge, seizure, lien or other encumbrance in favour of any third party; and (iii) immediately inform Bitoner of any fact or act that may prejudice the Products themselves and/or modify or/and limit Bitoner’s rights over them.

6. Prices 

6.1. Unless otherwise agreed in writing between the parties, the prices of the Products shall be the prices indicated in the Order Confirmation corresponding to Bitoner’s price list in effect on the date on which Buyer’s Order was issued to Bitoner.

6.2. Prices are net of VAT, where applicable, and do not include any Taxes and, to the extent applicable, postal charges, freight costs, other shipping and handling expenses, insurance, which will be payable by the Buyer in addition to the prices.

7. Payments

7.1. The Buyer shall pay the price of the Products pursuant to the terms indicated in the Order Confirmation. To the maximum extent permitted by the applicable law, the Buyer cannot set-off or withhold the payment of any sum due under the Conditions and any Agreement, even in case of objections related to the Products, their delivery or to the Agreement itself.

7.2. The payment terms in the Order Confirmation are of the essence. If the Buyer fails to pay or delays in paying, in whole or in part, any invoice, (i) interests shall accrue on the outstanding sums pursuant to Section 5 of the Italian Legislative Decree No. 231/2002, without prejudice to any further damage and any other remedy available at law or under the Conditions, and (ii) Bitoner shall be entitled to withhold any payment due to the Buyer under any agreement whatsoever and (iii) Bitoner shall be entitled to suspend/interrupt any other supply to the Buyer under any agreement whatsoever and even if relating to different order Confirmations.

7.3. Bitoner reserves the right to set-off any amount due to the Buyer against any amount owed by Bitoner to the Buyer.

8. Defects and returns

8.1. Any discrepancies, fault or defects in the Products delivered shall be notified immediately in writing by the Buyer upon delivery or, in case of hidden defects, within 8 days from the discovery, and, in any event, within 1 year from the delivery date. Any claim presented will not exonerate the Buyer from the obligation to pay the price in accordance with the terms set forth under Section 7 of these Conditions.

8.2. Bitoner’s obligation to repair or replace, at its own choice, the defected goods will arise only further to a careful inspection of the Product allegedly defected by Bitoner, in case the defect, discrepancy or fault is actually ascertained. Any other express or implied right of the Buyer or remedy against a defect is expressly excluded to the maximum extent permitted by applicable law.

8.3. To the maximum extent permitted by applicable law, Bitoner shall not be responsible for any loss, damage or costs incurred, or arising out as a consequence of the incorrect or non-conforming use of the Products and/or their use in conditions for which they were not designed or intended.

8.4. The Products delivered shall not be returned for any reason without the explicit written authorisation of Bitoner. In any case, returns are understood as accepted and the sums in question credited only if the Products are returned in their original conditions following the checks and inspections carried out by Bitoner.

9. Termination

9.1. Without prejudice to any other remedy granted to Bitoner pursuant to applicable law, Bitoner will be entitled to terminate an Agreement in case Buyer fails to comply with the obligations set forth under Sections 5.2, Section 7 and Section 10 of the present Conditions.

10. Intellectual Property and confidentiality

10.1. All Bitoner’s Intellectual Property is and will remain the exclusive property of Bitoner. The Buyer undertakes to abstain from any act that may violate or jeopardize such rights.

10.2. In the event a Product is, or in Bitoner’s opinion, may become subject to claims, actions or proceedings for violation of third parties’ intellectual property rights, Bitoner may, at its own discretion and expense, (i) obtain for the Buyer the right to use, lease or sell the Product, (ii) replace the Product with another product having the same function, (iii) modify the Product or (iv) remove the Product and reimburse the price paid by the Buyer, previous deduction of a reasonable amount for the Product use, damage or obsolescence. To the maximum extent permitted by applicable law, this remedy will be the sole and exclusive remedy for the Buyer vis-a-vis Bitoner in connection with any third-party’s claim, actions and proceedings and, in no event Bitoner’s liability to the Buyer will exceed the price paid for the allegedly infringing Product.

10.3. To the maximum extent permitted by the applicable laws, Bitoner will have no liability whatsoever vis-a-vis the Buyer, and the aforesaid remedies will not apply, in relation to any violation of third parties’ intellectual property rights deriving from (a) any changes made on the Products by the Buyer or its agents/representatives, (b) any assembling of the Products with other products, (c) the use of the Products in the processes carried out by the Buyer or its agents/representatives or (d) the compliance by Bitoner with the Buyer’s instructions, designs, projects and specifications. The Buyer undertakes to defend, indemnify and keep Bitoner harmless from and against any damage, cost, expense or liability whatsoever suffered by Bitoner in connection with any claims, actions or proceedings raised by third parties in connection with any of these hypotheses.

10.4. Buyer (i) shall maintain Bitoner’s Confidential Information strictly confidential, (ii) agrees that it will take the same steps to protect the confidentiality of Bitoner’s Confidential Information as it takes to protect its own Confidential Information, which shall in no event be less than reasonable steps, and (iii ) shall not use Bitoner’s Confidential Information for any purpose other than in accordance with the Agreement and shall not disclose such Confidential Information to any person other than its personnel who have a need to know such Confidential Information for the Purpose of the Agreement and who are subject to a nondisclosure obligation comparable in scope to this Section.

11. Force Majeure Event

11.1. Neither party shall be held liable and/or in default for any delay or failure to perform its obligations under the Conditions and/or the Agreement due to Force Majeure Events. The performance of the obligations affected by the Force Majeure Event will remain suspended for as long as the impossibility to comply with it due to the Force Majeure Event endures. The party affected by a Force Majeure Event shall promptly (i.e., within 7 business days) notify in writing the occurrence of such event to the other party.

11.2. In case, however, such impossibility endures for more than 120 (one hundred and twenty) days, each party shall have the right to terminate the Agreement by means of a written notice to the other party.

12. Governing Law and Jurisdiction

12.1. The Conditions, the Agreement and any non-contractual rights or obligations arising out of or in connection with them shall be governed by and construed in accordance with the laws of Italy.

12.2. The parties agree that the courts of Milan shall have exclusive jurisdiction to settle any Disputes and waive any objection to proceedings before such courts on the grounds of venue or on the grounds that such proceedings have been brought in an inappropriate forum.