1. General principles

These General Purchase Conditions and the detailed conditions indicated in each individual order govern, in an exclusive nature, the issuing of orders, their scheduling and purchase contracts stipulated with DVP Vacuum Technology S.p.A. (Fiscal Code and VAT No. 01548721206), having registered office in Via Rubizzano 627, 40018 San Pietro in Casale (Bo), Italy, and hereinafter also referred to as ‘DVP’.

Any additions, modifications or exceptions shall only be valid and effective if expressly approved in writing by DVP.

These General Purchase Conditions shall prevail over any general sales conditions of the Supplier, even if referenced in order confirmations or in other documentation, unless specific and limited exemptions are expressed and approved in writing by DVP.

The payment of invoices or the acceptance of the delivery of the goods of the Supplier shall in no case be considered as acceptance of sale terms and conditions.

 

  1. Validity

These General Purchase Conditions are an integral part of the order and of the purchase contract, and are valid as such between DVP, as the purchaser, and the Supplier.

 

  1. Reference documentation

The Supplier Quality Manual is an integral part of the General Purchase Conditions.

Depending on the exact type of supply and according to DVP requirements, it may be necessary to accept a corresponding Non-Disclosure Agreement (NDA), Logistics Agreement and Technical Specification.

 

  1. Purchase orders

The DVP purchase order includes the following essential data:

  • The order number, the date and the reference to any specific offer
  • The name and details of the Supplier company
  • The type of payment, the handling bank and the payment currency
  • Who is to bear packaging and shipping charges
  • The progressive position number
  • The DVP code of the material being ordered, together with its description and cross reference
  • The quantity being ordered
  • The net unit price
  • The words ‘D.V.P. Purchasing Office’

Any order placed by DVP is understood to be governed by these General Purchase Conditions.

 

  1. Order confirmation

The Supplier must send DVP an order confirmation in writing within 2 working days from receipt of the order. In the absence of an order confirmation or in the event that the supply has already been initiated, all terms of the purchase order shall be deemed accepted by the Supplier and the relative contract shall be deemed concluded. Any counter proposal by the Supplier shall only be valid if expressly accepted by DVP. In the absence of an order confirmation in the terms and in the manner indicated above, DVP shall, in any case, have the right to cancel or revoke the order without negotiation and to refuse order confirmations received after the indicated timeframe.

 

  1. Order modification

In case of need, DVP reserves the right to request modification of the purchase order, in writing, clearly indicating the order number, item code, quantity and type of modification (e.g. order advance, postponement, cancellation, quantity increase). Such change shall be deemed accepted by the Supplier unless the latter express in writing to DVP, within two days, that it is not willing to carry out the supply according to the proposed modified conditions

 

  1. Prices

Prices are indicated in the order and, unless otherwise specified therein, generally refer to the price list in force at the time the order is issued. The prices set in the order are to be considered net of VAT, as well as fixed and invariable, and therefore not subject to increase, except only for variations due to unforeseeable and exceptional conditions that the Supplier must promptly communicate to DVP, and which must, in any case, be agreed with DVP. The prices, unless otherwise indicated in the order, are intended as Delivered Duty Paid (DDP), that is inclusive of all customs duties, taxes, insurance, packing costs and mandatory contributions required by law. Any changes to the price lists in force must be agreed in advance with DVP.

 

  1. Delivery & risk transfer

The delivery date confirmed to DVP by order confirmation is binding for the Supplier and refers to arrival at the destination indicated by DVP. In case of any violation of the delivery date, DVP may exercise its right to:

  • Request compensation from the Supplier for damages incurred for non-delivery of the goods;
  • Cancel, void or revoke the order or orders in progress without any penalty or commitment of any kind due to the Supplier;
  • Purchase products from other suppliers at market prices, charging the Supplier for any differences due to nondelivery and its consequences.

 

Deliveries in advance of the confirmed delivery date may occur subject to prior acceptance by DVP, which reserves the right to request any relative extension of the payment terms for such.

The Supplier assumes all risk of loss or damage relating to the goods until they are received by DVP, or by a representative appointed by DVP, at the agreed delivery location in accordance with that indicated in purchase orders.

The Supplier shall provide DVP with all the technical documents that must be delivered together with the products on delivery or, in any case, in the timeframe requested by DVP.

 

  1. Payment terms

Payment terms are those indicated in each purchase order.

 

  1. Drawings, technical specifications, moulds & samples

Drawings, technical specifications, moulds, samples, designs, processes, confidential information and information declared as confidential by DVP (including know-how and technical, commercial and administrative information) transferred or made known by DVP to the Supplier, and all related patentable or unpatentable industrial and intellectual property rights, remain the exclusive property of DVP, which the Supplier shall keep with due diligence and in accordance with the terms contained in the Non-Disclosure Agreement (NDA) signed between the parties.

In any case, even in the absence of the signing of the aforementioned separate NDA, the Supplier undertakes for three years from the last supply not to disclose, deliver to third parties or use, for non-contractual purposes, the technical documentation, equipment and, more generally, any confidential information received from DVP for the execution of the supply.

 

  1. Conformity with DVP technical specifications

The product for which the supply is requested must comply with the technical and qualitative specifications required by DVP as indicated in the Technical Specification and in the Supplier Quality Manual.

In any case, even in the absence of the aforementioned technical documents, the technical and qualitative specifications transmitted by DVP are those for which the Supplier is required, independently of its own responsibility, to guarantee the absence of defects, subject to the penalty of reimbursement for any damage that might occur.

Upon verification of product samples, products that do not conform to the DVP technical specifications may be rejected. In such case, the Supplier is not authorized to deliver the series production lots and any deliveries forming part of this stage shall be charged to the Supplier as non-compliant returns.

All damages, charges and costs deriving from the management of non-compliant material (e.g. sorting, costs of urgent shipment to the customer, line downtime costs, recall campaigns) are charged and debited to the Supplier whose responsibility has been ascertained.

 

  1. Warranties

The Supplier declares to be in possession of all necessary licenses, permits and authorizations for the production and marketing of the products to be supplied.

Consequently, the Supplier warrants that the goods conform to the characteristics and technical specifications agreed between the parties, referenced in the order or possessed by the delivered product samples, models or prototypes are suitable for sale and use, subject to warranties provided for by Italian law in relation to the technical specifications of supplies, and free of any constraints, and that all the materials used are free from any defect or fault of any kind, even hidden, and that the work has been carried out to the state of the art of professional standards.

DVP shall invariably have the right to carry out audits on the Supplier’s quality system and to request a copy of relevant manuals and certifications.

 

  1. Claims & defects

Acceptance of the products is always subject to a quality control by DVP, in order to check for any defects or faults, as well as for the correctness and completeness of the supply and of accompanying documentation. As an express exemption of Article 1495 of the Italian Civil Code, the claim of any defect must be made by DVP within 40 days from the date of delivery for any ‘evident’ defect or from the date of the discovery of the defect for any ‘hidden’ defect. Any defect discovered at the time of unpacking is expressly considered a hidden defect. Written claims of non-conformity shall be deemed accepted by the Supplier if they are not contested within 5 days following receipt. Without prejudice to any other right given by law, to any varying agreement between the parties or to that specifically detailed in the Supplier Quality Manual, the Supplier shall provide, within a reasonable time requested by DVP, to repair and/or replace the defective product at the Supplier’s own cost and expense. Labour, transport and packaging costs are all covered under such warranty. In the absence of timely intervention by the Supplier, DVP shall have the right, at its own discretion, to:

  1. a) Accept the goods with an appropriate price reduction;
  2. b) Provide for repair directly or through third parties with related costs charged to the Supplier. In case of substitutions or repairs, the warranty term shall start from the date of such interventions.
  3. c) Terminate the contract between the parties.

If, during the acceptance quality control, the goods are rejected due to non-conformity (with technical specifications or order conditions), DVP shall invariably have the right to cancel the order (under point c), requiring the cancellation of the invoice, also in the case of sale by lots. The Supplier/manufacturer is liable for all damages caused by product defects, pursuant to Italian Legislative Decree No. 206/2005, and shall provide at its own expense for the stipulation of a suitable and adequate insurance policy for product civil liability. The Supplier is obliged to indemnify and hold harmless DVP in relation to any damage, cost or claim, also in the case of recall campaigns or legal action initiated by third parties, deriving from or resulting from defective or unreliable goods.

 

  1. Export control

The Supplier is obliged to inform DVP of any requirements relating to export licenses of goods or products according to Italian, EU or US legislation on export control and customs regulations, as well as of those relating to export control legislation and customs regulations in force in the countries of origin of the products. Therefore, the Supplier shall invariably indicate in order confirmations and invoices, and provide for any updates thereof, the following information: the export list number or Export Control Classification Number (ECCN) for US goods according to United States Export Administration Regulations (EAR); the country of origin of the goods and related components, and any eventual transport, manufacture or deposit within the territory of the USA or any manufacturing with US technology; customs tariff for the goods (according to the Harmonized System (HS) Code of the product); corporate reference contact person for information on the subject. If not expressly indicated by the Supplier before completion of the order confirmation, it shall be understood that the goods are free for export to the country – indicated in the order – in which the delivery is to take place.

 

  1. Sub-supply

DVP may, in writing, authorize sub-supplies only if the sub-supplier accepts all the obligations assumed by the original Supplier.

The Supplier shall, in any case, be liable to DVP for any non-conformity and for the quality of the product supplied to DVP.

 

  1. DVP equipment at the supplier

The Supplier acknowledges that equipment made available for the execution of supplies to DVP is destined to the production of products whose industrial property is exclusively that of DVP. To this end, no right of exploitation of such products is permitted to the Supplier.

 

  1. Compensation for damages

In the event of any compensation due to penalties, indemnities or damages that the Supplier must pay to DVP, such compensation may be offset by residual credits to be paid.

 

  1. Insurance coverage

Without prejudice to any liability of the Supplier in relation to DVP, the Supplier undertakes to take out and maintain in force for the duration of the commercial relations between the parties an adequate insurance policy to cover all civil liability deriving from the sale of the products to be supplied, with coverage proportionate to the total value of the products. At the request of DVP, the Supplier shall make available to DVP a copy of the insurance policy and the certificate of payment of the relative premium.

 

  1. Contract/order transfer

Without prejudice to the existence of varying written agreements between the parties, the Supplier shall not, in any case, transfer to third parties, in whole or in part, orders or contracts issued by DVP. Credits may not be transferred to third parties without the prior authorization of DVP.

 

  1. Express termination clause

Without prejudice to the right to terminate this contract due to any non-fulfilment or contractual violation by the Supplier contemplated under ordinary law, the parties expressly agree that DVP has the right, by written communication, and with effect from the date that DVP shall indicate in the same communication, to terminate the existing contract, with the related cancellation or revocation of all deliveries and orders not yet fulfilled, in the following circumstances:

  • Any delay in the supply of goods exceeding 7 days;
  • Violation by the Supplier of the principles contained in the Supplier Quality Manual;
  • Violation by the Supplier of the Logistics Agreement;
  • Violation by the Supplier of the Technical Specification;
  • Deterioration of the Supplier’s equity or financial conditions such as to compromise the supply;
  • Fraud or gross negligence on the part of the Supplier in the execution of the supply such as to damage the image or the business interests of DVP;
  • Court proceedings against the Supplier such as to compromise or damage its image or reputation or the image or reputation of DVP;
  • Supplier liquidation, business cessation, insolvency or entry into bankruptcy proceedings of any kind, including debt restructuring agreements and agreements with creditors.
  • Infringement of the Non-Disclosure Agreement by the Supplier, or, in any case, of its obligations of confidentiality or of non-infringement of any third party rights.

 

  1. Termination effects

In the event of any termination of rights under the previous express termination clause, or following termination due to non-compliance with general regulations, with the immediate cancellation of ongoing orders not yet completed, the Supplier shall no longer have the right to deliver or charge DVP for outstanding products, and shall immediately return to DVP any product, material or equipment owned by DVP.

 

  1. Mediation

Any dispute arising between the parties regarding the interpretation, validity, effectiveness, execution and termination of these Purchase Conditions and of the orders, contracts and acts that constitute them, including any claim for damages, shall be submitted to preliminary mediation by the Chamber of Commerce of Bologna, Italy.

 

  1. Force majeure

In cases of force majeure, labour disputes, interruption of business activities outside of the control of DVP, riots, government measures and other unavoidable events, DVP is free from the obligation to accept the goods or services according to scheduled deadlines for the duration of such events. During such events and the following two weeks, DVP shall have the right to withdraw, in whole or in part, from the supply contract, if such events have a non-negligible duration and the requirements of DVP are considerably reduced.

The Supplier is obliged to communicate to DVP the occurrence of any case of force majeure in the shortest possible time, in relation to the type of event, and, in any case, within 10 working days.

Non-observance of this clause by the Supplier shall constitute just cause for DVP to withdraw from the contract and to demand any damages deriving from infringing conduct.

 

  1. Good faith

DVP and the Supplier shall comply with the rules and the principles of good faith and of fair and proper conduct during the formation and execution of the contract deriving from these General Purchase Conditions. The parties undertake to exchange all necessary and sufficient information for the proper execution of the purchase contract according to these General Purchase Conditions.

 

  1. Contract preservation

If any provision of these General Purchase Conditions, following the stipulation of the contract, should be declared void, invalid or unenforceable, such provision shall not affect the applicability of the other provisions herein, which shall remain in force for all purposes.

 

  1. Tolerance

Any tolerance by DVP of violations of obligations in relation to the order or contract, any failure to exercise rights or any granting of favorable treatment, even over any period of time, may not be interpreted, under any circumstances, as conclusive conduct or otherwise give rise to any right not expressly provided for in these General Purchase Conditions.

 

  1. Applicable legislation

These General Purchase Conditions, related orders and ancillary contracts are governed exclusively by Italian law.

 

  1. Arbitration

Any dispute or action that, in accordance with applicable law, may not be resolved through mediation or that derives from the negative outcome of the aforementioned preliminary mediation, shall be settled by arbitration under the Rules of the Chamber of Arbitration of Milan (the Rules), by a sole arbitrator appointed in accordance with the Rules.

The Arbitral Tribunal shall decide in accordance with the rules of law of Italy. The seat of the arbitration shall be Milan. The language of the arbitration shall be Italian.