Introduction

These Terms and Conditions of Sale (“Terms of Sale”) apply to the sale and delivery of products (“Products”) sold by SPICA SRL, with registered offices in Via Carlo Goldoni, 26 – 20090 Trezzano sul Naviglio (MI) – Italia, P.IVA 04846060962, fax number +39 02 48400460, email address info@spica.it , belonging to the Siwax Group (“Seller”) in the performance of the purchase and sale contract concluded following the sending of an order relating to Products to the Seller via fax or email or any other means explicitly accepted by the Seller (“Order“) by the customer indicated in the Order (“Purchaser“).

By placing an Order for or making a purchase of Products, the Purchaser agrees to be bound by these Terms of Sale.

These Terms of Sale expressly exclude the applicability of any general or specific terms and conditions of the Purchaser, which, anyway, will not be binding for the Seller even if (i) upon its receipt, the Seller shall not explicitly exclude their application and/or (ii) they expressly exclude the applicability of these Terms of Sale.

1. Conclusion of the Contract

A Purchaser’s Order constitutes an offer to purchase Products from the Seller and it cannot be revoked for a period of 7 (seven) days. All Orders are subject to acceptance by the Seller. The Seller is not obliged to accept any Order and may, at its discretion, decline to accept any Order.

An Order is not considered accepted and, thus, the relevant contract of sale is not effective and binding, until the Purchaser receives from the Seller via fax or email or any other means explicitly accepted by the Seller a confirmation order containing information about the acceptance of the Order (“Order Confirmation“).

In case of conflicts between the Order and the Order Confirmation, the latter shall prevail. In case the Order Confirmation is different from the Order, such Order Confirmation shall constitute an offer to sale the Products to the Purchaser and it shall be considered as tacitly accepted by the Purchaser and, thus, binding between the Seller and the Purchaser, unless the latter challenges such acceptance in writing not later than 7 (seven) working days after it receives the Order Confirmation.

By placing an Order or accepting an Order Confirmation (as the case may be), the Purchaser agrees to be bound by all of the Terms of Sale. These Terms of Sale and the Confirmation Order constitute the entire sale agreement (collectively, the “Agreement“) and understanding of the Seller and the Purchaser with respect to the transactions as explained herein.

2. Obligations of the Seller – Inspection by the Purchaser and Claim

The Seller commits itself to supply the Products quality in accordance with the specifications of the technical data sheet of the Products or the ones expressly agreed in writing with the Purchaser. These Terms of Sale do not intend to grant any additional warranties over and above that provided herein.

When receiving the Products, the Purchaser has to carefully check the quantity and the technical specifications of the delivery and notify the Seller of any alleged error, shortage, defect or non-conformity regarding the Product quantity or technical specifications within: (i) 8 (eight) days after the delivery date in case of visible defects and (ii) 8 (eight) days after the discovery of the defects in case of hidden defects (provided that such discovery occurs during the warranty period as provided by the applicable law). Failure to do so constitutes a waiver of any claim or right of Purchaser against the Seller arising hereunder or by law with respect to any such error, shortage, visible and hidden defects or non-conformity.

Once received the notification, the Seller shall contact the Purchaser. The costs for the return of the Products to the Seller shall be charged to the Purchaser, unless otherwise agreed with the Seller. If the defects or non-conformity are effectively verified and recognized by the Seller, the latter may either issue a credit note corresponding to the value of the damaged Products, or remove the defects through repair or replacement of the Products at its sole discretion. The delivery costs relating to repaired or replaced Products will be charged to the Purchaser, unless otherwise agreed with the Seller.

This warranty is not valid:

• in case of improper use of the Products, including unsuitable or non-compliant storage according to the manufacturer’s instructions
• for defects deriving from the use of the product together with other raw materials
• for damages incurred by the Products during transportation, if the Purchaser has not expressly reserved such rights in writing to the carrier at the time of delivery
• if the marks or labels of the Products have been tampered, hidden, removed or otherwise compromised;
• for damages incurred due to falls, accidents or events of force majeure.

The activation of the abovementioned warranty against the Seller shall be made only by the Purchaser and not by the final users and/or clients of the Purchaser.

3. Prices and Payment

Unless otherwise agreed between the Seller and the Purchaser, prices applicable to the Products are those indicated in the Seller’s official sale price lists of the Products in force at the time of submission of the Order. The Seller may update the selling prices of the Products at any time at its sole discretion, if market conditions make it necessary, immediately informing the Purchaser through separate communication or through the Order Confirmation “. If an Order has already been confirmed, the increase will be applied from the next delivery

Unless otherwise agreed between the Seller and the Purchaser or indicated in the Order Confirmation, prices do not include any tax or other government charge or assessment upon the sale, shipment, import or use of Products.

Unless otherwise agreed between the Seller and the Purchaser or indicated in the Order Confirmation, the Purchaser shall also pay and be exclusively liable for all costs of shipping, import duties, delivery, insurance and the like. Unless otherwise indicated in the Order Confirmation, all purchases must be paid in full prior to delivery. The Seller reserves the right to suspend delivery and performance until full payment is received.

Failure or delay to make payment will make it impossible to process the relevant Agreement and/or will cause the suspension of the following Agreements, if any, as well as the right for the Seller to terminate the relevant Agreement. The Purchaser shall not offset against or deduct from any amounts due to the Seller all or any part of any amounts owed or alleged to be owed by the Seller to the Purchaser at any title.

The payment relating to the prices of the Products and other relevant charges or delivery costs shall be carried out according to the timing and modalities indicated by the Seller in the Order Confirmation, unless differently agreed between the Seller and the Purchaser. The delayed payment of the amounts due by the Purchaser shall cause the application of late-payment interests provided for by the applicable law, from the day following the expiry and until the actual date of payment.

4. Shipping and delivery

The processing of the purchases is subject to the availability of the Products in the warehouse. The Seller reserves the possibility to process the order and deliver the Products in split consignments, separately invoicing the relevant amounts for each delivery. The delivery times are intended for working days and refer to the date of shipping of the Products, which is purely indicative and not binding for the Seller.

Products shall be delivered according to the INCOTERM mentioned in the Order Confirmation, unless differently agreed between the Seller and the Purchaser. The time required by the carrier for transport and delivery does not depend on the will and ability of the Seller, which shall not be liable for any delay in the delivery of the Products.

If the Purchaser refuses to accept the delivery of a part or of all the Products ordered, the Purchaser shall pay anyway the sale price as well as delivery and storage costs of the Products at the carrier’s premises.

5. Liability of the Seller

The Seller does not guarantee that the Products are suitable for some particular uses and it is not liable for any use and/or the industrial application of the delivered Products by the Purchaser.

The Seller shall not be liable for direct or indirect damages, of any type or nature, connected and/or in any case deriving from the purchase and the use of any Product by the Purchaser, including, but not limited to, damages for loss of profits, damage to the image, damages deriving from complaints and/or disputes raised by third parties against the Purchaser for any reason. The liability of the Seller is anyway limited to the price of the Product paid by the Purchaser in the performance of the relevant Agreement. The above limitation of liability and the exclusion of the same do not apply to personal injuries, life and health and in case of tort and gross negligence.

6. Miscellanea

The Purchaser shall comply with all applicable laws, rules and regulations with respect to use of the Product, abide by all applicable foreign trade/export restrictions or similar rules.

The Purchaser shall not assign any Agreement in whole or in part, nor subcontract all or part of its contractual obligations, without the Seller’s prior written consent. Any change in the direct or indirect control of Purchaser’s share capital shall be deemed constitutive of an assignment. If the assignment is authorized by the Seller, the Purchaser shall remain in any case fully responsible and liable for the performance of the relevant Agreement(s).

Certain trademarks, trade names, service marks and logos used on or in association with the Products are registered and unregistered trademarks, trade names and service marks of the Seller and its affiliates. Neither the Purchaser nor anyone else is granted by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos without the written permission of the Seller.

The Purchaser undertakes to process any information, data, found, patented or patentable, know-how and, in general, any technical, economic, commercial or administrative news as well as any drawing, document, magnetic support or sample material or product relating to the Products (hereinafter “Confidential Information“) with strict confidentiality and as if they were private secret and confidential information and to appropriately store said information. In particular, any information relating to the activity of the Seller which has not entered the public domain and of which the Purchaser became aware during the execution of any Agreement shall be processed as Confidential Information of the Seller and may not be disclosed unless the disclosure is required by law or court order and any other competent authority. The confidentiality obligations shall be valid for ten (10) years after the delivery of the Products. The Purchaser guarantees the fulfilment of said obligations by all the people for whom it is deemed liable including employees, consultants, agents, officer, etc.

The Seller and the Purchaser undertake to process any personal data connected with any Agreement or resulting as a consequence of the same, including judicial data, accessed and/or communicated due to and in connection with any Agreement and for the performance of the obligations provided herein, in compliance with the provisions of the EU Regulation no. 679/16 (“GDPR“) and related implementing laws.

Any waiver by the Seller of the performance or breach of any provision of any Agreement shall be in writing and executed by an authorized officer of the Seller, and no such waiver shall constitute a waiver of the subsequent performance or breach of the same or any other provision.

The invalidity or unenforceability, in whole or in part, of any provision hereof shall not affect in any way the validity and enforceability of the remainder of such or any other provision.

The Competition Law and Antitrust Policy Statement and Code of Ethics of the companies belonging to the SIWAX Group (documents available on request) apply to any relationship between the Seller and the Purchaser.

7. Applicable Law and Jurisdiction

These Terms of Sale, the Order and the Confirmation Order are governed by the Italian law. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.

Any disputes arising out of the interpretation and/or execution of these Terms of Sale, the Order and/or the Confirmation Order shall be subject to the exclusive jurisdiction of the Court of Milano.

Date of Revision: January 2021