- Supply item
These general contract conditions regulate and form an integral part of all orders and/or order proposals as well as all the special conditions negotiated individually and regarding the supply of products by MAK S.p.A (hereinafter, for brevity, also just MAK). They apply to all present and future contracts, which have the supply of goods as their main object. Any additional obligations contracted by MAK do not modify the application of these general conditions.
The supply only relates to the products identified in terms of quantity and quality and with the technical and construction features indicated in the orders and/or order proposals as well as in all negotiated contracts. In any case, MAK reserves the right to make all the appropriate changes to the products in order to update them, or adapt them to new technical construction solutions and/or requirements imposed by current legislation.
Standard clauses and contractual terms of the customer which are contrary to or modify those of MAK do not bind the latter, even if it has not expressly opposed them, or even if it has performed services or has accepted services from the customer, regardless of contractual conditions of the customer contrary or modifying and without raising reservations In any case, MAK is not obliged if the customer’s contractual conditions, regardless of the content of these general conditions, are contrary to legal provisions of national and/or community origin, even it they have a regulatory nature.
MAK has made these general conditions known by:
– making them available in vision or copy at their seats to any customer who requests them, or alternatively
– by publishing them on its website.
3. Obligations of MAK
MAK must make the goods available to the customer for delivery to the address specified in the order confirmation and, if not present, to its headquarters in Carpenedolo (BS).
4. Conclusion of supply contract
Each supply contract will be considered concluded upon receipt by MAK, via e-mail and internet, via the B2B platform, of a suitable order for the supply correctly completed by the customer.
Third parties who are not involved in the conclusion of the contract, in particular the customer’s buyers, are not entitled to assert any claims of a contractual nature against MAK. The customer is the recipient of the delivery even if he transfers his rights to a third party. In any case, the signing of private agreements negotiated individually and having as their object the supply of products, or other and further fulfilments and charges for MAK, entails the full acceptance of these general conditions.
Unless otherwise agreed separately in writing, MAK is not obliged to perform services that are not indicated in the written order confirmation or in these general conditions; in particular, MAK is not obliged to render planned services, nor to carry out product presentations, nor to deliver accessories which have not been expressly referred to in the contract, nor to provide additional safety equipment, nor to carry out installations, nor to provide advice to the customer. MAK is not responsible for the fulfillment of the obligations deriving from the placing on the market of the goods outside Italy.
The verbal agreements, declarations and/or commitments of commercial representatives, employees and/or collaborators and/or agents of MAK which took place before, at the same time or after the sunscription of these conditions will not be binding for MAK unless confirmed by the latter in written form. Agents, commercial representatives, employees and/or officers and/or appointees of MAK are not authorized to give up the requirement of written confirmation by MAK, nor can they issue declarations different in content from the written confirmation, or to issue declarations and/or attestations of warranty.
Orders, forwarded by the customer in ways which are different from those provided for in these general conditions, will not be binding in any way for MAK, which may therefore not accept them or accept them partially at its own unquestionable judgement. In the event of a conflict between the customer’s purchase order and these supply conditions, the latter will prevail unless MAK wishes otherwise expressed in writing. Likewise, in the event of discrepancy between the order issued by the customer and the relative confirmation by MAK, the latter will prevail.
Before concluding the sales contract, the customer must inform MAK in writing if the ordered goods must have specific features as they are meant for a non-standard use, if they must be used in abnormal conditions or involving particular stress of use or an intense solicitation.
By order we mean any document containing the identifying elements of the supply to be made such as quantity, type of product and price.
Without prejudice to various obligations relating to the guarantee of payment or to the preparatory acts for the payment, the customer is obliged to pay the contractually established price in the currency indicated in the order confirmation.
Any terms granted for fulfillment are no longer applied, and the unfulfilled obligations immediately expire, if a request is made for insolvency proceedings against the assets of the customer; when the customer without just cause fails to fulfill essential and expired obligations towards MAK or third parties; if the customer has not provided correct information on his creditworthiness or if the coverage guaranteed by a credit insurance is reduced for reasons which are not due to MAK.
MAK has the right to set off the payments received at its discretion, regardless of their currency and jurisdictional competences, with the credits – own or obtained by assignment – claimed against the customer at the time of payment.
The customer cannot exercise the legal right to set off his own credits with those of MAK, except in case of a service in return expressed in the same currency, based on the customer’s own right, and provided that it is established by force of law, or expired and undisputed, or agreed in writing by MAK.
The customer is obliged to take delivery of the goods on the contractually established date, without enforce further terms, in the delivery place estabilished in the written order confirmation, or at least, at the MAK headquarters.
Price lists, quotes, offers and prices may be subject, at any time, to subsequent changes and/or additions at the unquestionable judgment of MAK.
7. Delivery terms
Unless otherwise agreed in writing by the parties, the delivery of the products is meant to be carried out EXW-ExWorks Incoterms 2010, without transport, insurance, taxes and duties of any kind, as well as any other charges, which will be entirely borne by the customer.
Force majeure, accidents and all exceptional events that may affect the regular processing of the order, such as, for example, delays and/or supply interruptions by the usual suppliers, union unrest, supply difficulties, energy outages, restrictions in imports and exports, acts of third parties, the emergence of particular difficulties of a technical nature, provisions of the authorities will allow MAK to extend the delivery terms adequately or, if the fulfillment of the order is compromised or made impossible, to withdraw totally or in part from the contract, without the customer’s right to obtain any compensation. The expressions fortuitous event and force majeure must be understood in a broad sense and such as to include any event that limits and prevents the normal progress of production and/or distribution.
Without prejudice to any other rights deriving from the law, MAK can perform after the expiry of the stipulated period if it informs the customer accordingly and communicates him the deadline for late performance. The customer may object within 48 hours from the communication. The objection will only be effective if it reaches MAK before the beginning of the late performance. MAK may also make, under the aforementioned conditions, one or more attempts at late fulfillment of the service.
It is MAK’s right not to fulfill the order, even if confirmed, if the customer has become insolvent also with reference to other supplies or towards other suppliers, or its patrimonial guarantees have decreased.
8. Claims for defects
The customer has to claim MAK in case of any defects regarding the goods within 8 (eight) days from the delivery date, if they are recognizable and manifest. Claims for unrecognizable defects cannot, in any case, be reported after the 24 (twenty-four) months of validity of the guarantee on production and painting defects. Claims must be formalized immediately to MAK in writing, on pain of forfeiture. In the absence of a regular complaint, considering the peremptoriness of the term, the purchaser will lose the relative right.
Collaborators, representatives or other distributors on behalf of MAK are not authorized to accept claim or issue warranty statements and/or certificates.
Once the claim has been made, the customer will have the possibility to avail himself of the remedies indicated in these general contract conditions. The customer has no further remedies. In the event of an irregular complaint, the customer may avail himself of the aforementioned remedies only if MAK has fraudulently concealed the existence of the defect and/or vice.
The solutions that MAK make available to the customer do not constitute acknowledgment capable of legitimizing the customer to any claim for compensation for alleged damages, nor can it be interpreted as a reversal of the burden of proof.
Any admissions by MAK, however manifested, have the sole purpose of clarifying the facts and do not constitute a waiver by MAK to oppose the exception of the complaint not correctly carried out.
If the delivered goods are actually defective, MAK will be able to replace them.
Returns will not be accepted, unless explicit authorization from MAK written in advance.
9. Delivery of non-confirming goods
Without prejudice to any exclusion or limitation of the seller’s liability deriving from the law, the delivery does not comply with the contract if the customer proves that the goods are clearly different in quantity, quality or type from what was stipulated in the written order confirmation. Modifications to the model, construction or material used which correspond to the latest technological developments do not constitute a missing conformity with the contract. Even if according to the provisions in force in Italy the goods are not compliant, the goods are in any case understood to be compliant with the contract where the legal provisions in force in the country where the customer is based do not prevent the normal use of the goods.
Upon delivery and/or arrival of the shipment, the customer and/or one of his representatives is required to verify the adequacy of the number of packages and any anomalies of the same and to simultaneously sign the DDT and/or the courier’s shipping coupon with reserve. Failing the foregoing, the shipment will be deemed to have been delivered in full and without defects.
MAK declares and guarantees that products have been designed by respecting the national, european and international regulations, the good quality of materials used and the good construction of the products which have been carefully tested and been subject to strict quality controls.
As concerns the beginning and duration of the guarantee, please refer to the provisions of the guarantee regulations for the products in force at the time of sale and in particular it is confirmed that the guarantee will be valid for 24 (twenty-four) months.
If the customer has directly carried out or has had interventions carried out on the product by third parties other than MAK, the guarantee will lose all effectiveness and will no longer be valid. In any case, the guarantee cannot be considered and the customer will be considered void of the same if he is not regularly fulfilling his payment obligations for the supply.
The obligation to replace defective parts cancel MAK’s liability under this warranty and the customer won’t be entitled to claim compensation for damages or payment of compensation for any further title.
11. Limitation of liability
The MAK catalogues, price lists or other promotional material constitute a mere indication of the type of products and prices, and the indications presented therein are not binding for MAK. MAK therefore has no responsibility for errors or omissions enclosed in its price lists or in its promotional material.
12. Compensation for the damage
Apart from the cases of guarantee mentioned in the previous articles, the customer is not recognized any further right or remedy. In particular, MAK is not responsible for any indemnity requested for violation or breach of contract.
The limitation periods for contractual claims set out in these general terms and conditions are applied.
The limitation and/or exclusion of liability of MAK also applies to the personal liability of its employees, workers, collaborators, agents, representatives and performance delegates.
Without prejudice to further claims by MAK due from law or contract, the customer is nevertheless obliged to compensate the following damages: i) in case of late payment, the customer will compensate the usual costs for judicial and extrajudicial actions incurred in Italy and abroad, as well as, without the need for proof, default interest as provided for by art. 5 co.2 of Legislative Decree 231/2002, as amended by Legislative Decree 192/2012, starting from the date of expiry of the payment term; ii) in the event of unjustified delay or failure to take delivery, MAK will have the right to request a lump-sum compensation for the damage in the amount of 15% of the value of the relative delivery without the need for proof of existence and the actual amount.
13. Retention of title
The ownership of the products will remain with MAK until full payment of the invoice, even after delivery to the customer. As a result of the successful delivery and until the transfer of the ownership title, the customer will therefore have the custody of the products and will have to keep them with the utmost diligence by providing for their maintenance. Until the transfer of ownership has taken place, the customer may not resell or dispose of the products in any way, rent them, transfer them or give them for use to third parties or in any case use them for purposes other than those resulting from the supply contract.
In case of initiatives by third parties on the products subject to retention of title, and in particular as regards attachments and seizures, MAK must be immediately informed by the customer in writing.
In case of of full or even partial non-payment of the supplies by the customer, by the due date, MAK will be able to repossess the delivered products, and this at its simple request. Notwithstanding the foregoing, the customer is responsible as custodian for any damage and loss occurring after delivery even if due to unforeseeable circumstances, force majeure or other events not attributable to the customer.
Payments must be made according to the conditions and deadlines set in the order, in the order proposal or in the negotiated contract.
In the event of non-payment or delayed payment of any amount due to MAK for any reason, the default interest will start from the moment of missing payment, without the need for notice or formal notice by MAK and subject to compensation for greater damages, as envisaged by art. 5 co.2 of Legislative Decree 231/2002, as amended by Legislative Decree 192/2012, starting from the date of expiry of the payment term.
MAK will have the right to refuse or suspend supplies in the event of default by the customer for any amount owed to him or if the patrimonial or financial situation of the customer deteriorates after the conclusion of the contract so as to reduce its patrimonial guarantees.
The customer waives the right to set off any credits against MAK unless the full payment of his debts is made.In the event of non-payment or late payment, MAK will also have the right to determine the termination of the supply contract pursuant to art. 1456 of the civil code acquiring the down payment as a penalty, except for greater damage.
For the entire duration of the supply contract, the parties undertake to keep confidential all the confidential information of which they have become aware in connection with and during the same.
16. Technical specifications and industrial property
The features, drawings, specifications, samples, models, equipment and documents that MAK may have communicated to the purchaser by any means, shall remain the property of MAK and the client undertakes to keep them confidential and to use them exclusively for the execution of this contract.
The customer also undertakes to refrain from using and from allowing third parties to use in any way, except to the extent strictly necessary for the execution of the supply contract, any and all ideas, projects, drawings, trademarks, company , sign, name, invention, utility model, service mark, copyright (including any future copyright), intellectual property, scheme, software, patent, know-how, trade mark and any other similar rights in any form whatsoever , whether registered or not, including any rights created or developed during the execution of the supply contract, relating to or incorporated in the products, in the supply contract and/or in each and every component of the supply (including, without limitation, the accessory technical and informative material and the user and maintenance manuals), or which are in any case used by MAK or by the companies belonging to its group (hereinafter, the “intellectual property”).
The customer therefore undertakes to refrain and to ensure that third parties refrain from requesting the registration of or claiming rights on the aforementioned intellectual property in any way, as well as to immediately inform MAK of any claim, dispute and threat brought by third parties in relation to such rights.
17. Express termination clause
This contract will be terminated by law in the manner provided for by art. 1456 code civ. if the customer suspends, in whole or in part, the payment of the sums due to MAK in relation to the supplies made in his favour; refuse to collect the goods supplied; disclose to third parties news and information relating to commercial relations with MAK; use MAK trademarks and/or models improperly; violates the exclusive supply area, where expressly agreed; is subjected to bankruptcy proceedings, none excluded, and again if acts of protest are raised against him or real estate or third party executive procedures are pending; decreases for any reason its patrimonial guarantees placed to protect the satisfaction of MAK’s credit reasons; make himself untraceable; make changes in its corporate structure in the event that the purchaser is a partnership or corporation; refuses, if requested, to issue MAK with suitable personal and real guarantees.
In case of legal termination, in addition to having to pay MAK the amount due, the customer must also fully compensate all damages suffered by the same as a result of its contractual breaches. However, the possibility for MAK to request compliance remains unaffected.
18. Termination of the contract
Without prejudice to any further rights deriving from the law, MAK may terminate the contract in whole or in part for non-performance by the customer and without any obligation to compensate if the customer opposes the application of the general conditions of international sale, if the customer violates essential obligations in against MAK or third parties without just cause, if the customer provides incorrect information on his creditworthiness, if MAK itself receives an irregular or non-timely delivery without its own fault or if for other reasons the fulfillment cannot take place by means that MAK is obliged to use, considering its interests and those of the customer – legitimate and recognizable at the time of conclusion of the contract – as well as in particular the consideration deduced in the contract.
19. Grounds from withdrawal
Regardless of the provisions referred to in the previous point, MAK may in any case withdraw from this contract, without any obligation to give reasons, with one month’s notice.
20. Assignment of rights
The customer may not assign his rights, nor appoint third parties to perform any of the obligations deriving from the supply contract, without the prior written consent of MAK.
21. Processing of personal data
In accordance with EU Regulation 2016/679, the customer authorizes MAK to use and process their personal data, declaring as of now that they are aware and have been informed of the purposes and methods of processing, of the optional nature of their provision and the possibility of legitimately objecting to their treatment by MAK.
The customer also declares to have been informed, pursuant to art. 13 of EU Regulation 2016/679, to be the owner of the rights provided for by the aforementioned last rule and of the methods for their exercise. The customer therefore gives MAK the right to communicate his personal data to companies controlled and connected by the same for statistical, commercial, marketing, credit protection, management and transfer of credit purposes, through consultation, processing, comparison, interconnection, and communication of the same for credit protection purposes and always within the scope and limited to the purposes and for the provisions contained in this contract.
These general conditions are drawn up in Italian. Any translations into other languages will be for reference only and, in case of discrepancies, the Italian language version will prevail.
23. Jurisdiction and governing law
The place agreed for the execution of the service, for the payment of the price and for the fulfillment of all the obligations deriving from the legal relations between MAK and the customer is Carpenedolo (BS).
This also applies in particular if MAK assumes the costs of the payments by separate agreement with the customer, performs services elsewhere on behalf of the customer or if payment is to be made against delivery of the goods or documents or if they are to be returned services already performed. The place of supply established by this provision is not affected by any agreements concerning the sharing of costs.
For any dispute deriving from or having a connection with the supply relationships governed by these general conditions or, in any case, connected with them, the judicial authority of the Brescia court will have exclusive jurisdiction with the express and agreed exclusion of any other possibly concurrent or alternative jurisdiction.
These general conditions and the supply contract are governed by Italian law.
Specific approval pursuant to art. 1341 et seq. Civil Code
The customer declares to have read and understood all the clauses of these general conditions and to specifically approve, pursuant to art. 1341 et seq. of the civil code, the following articles: 4 (conclusion of the supply contract); 6 (Prices); 8 (disputes and claims for faults and defects); 10 (Warranty); 11 (limitations of liability); 12 (compensation for damage); 17 (express termination clause); 18 (termination of the contract); 19 (causes of withdrawal); 23 (competent court and applicable law)