1. Applicability
1.1 The present General Conditions of Sale and Supply (“GCS”; version as available at https://www.dksh.com/it-en/home/general-conditions-of-sale on the date of confirmation by DKSH) shall govern exclusively all orders (“Orders”) placed with DKSH Italia S.r.l., via Salvator Rosa, 14 – 20156 Milano, Italy (“DKSH”) by the customer (“Customer(s)” shall mean each person or entity that enters into an agreement with DKSH about the supply of Products or provision of Services by DKSH to Customers) for products (“Products”) or services (“Services”), whether or not customized, to the exclusion of all other terms. Deviations from these GCS – in particular any application of the purchasing terms and conditions of Customers of DKSH – require DKSH‘s explicit written acceptance. Supply of Products, provision of Services or acceptance of payments without reservation shall not constitute DKSH’s acceptance of conditions varying from these GCS.
2. Offers/Contracts
2.1 Queries and/or proposals made by DKSH, even if designated as offers, are not binding and shall be understood as an invitation to the Customer to make and/or place an Order. Furthermore, the price information and technical specifications in DKSH’s price lists and brochures are not binding provided nothing to the contrary has been agreed upon in writing.
2.2 A contract (“Contract”) shall only be formed, and enter into force, upon acceptance by DKSH of a Customer's Order, whether by written notice (also by e-mail) or by performance of the Contract, whichever occurs first.
2.3 No Order may be cancelled and/or returned unless DKSH consents to such cancellation in writing (also by e-mail).
2.4 If the Customer requests short term delivery/performance to which DKSH agrees or in case of anticipated execution of a Contract, the Customer accepts that the invoice together with these GCS shall form the basis of the respective Contract.
3. Purchase Price and Payment
3.1 Unless otherwise agreed, all prices quoted by DKSH shall be understood in the currency as specified in the respective Contract between the Customer and DKSH and net EXW (Incoterms as in force at the time of the conclusion of a Contract), and exclusive of Value-added tax (“VAT”). All prices for Services shall be as provided in the Contract.
3.2 Therefore, VAT shall be payable separately in the statutory amount in effect on the invoice date.
3.3 Furthermore, the prices do not include additional charges and/or incidental costs, such as – but not limited to - packaging, packing, transportation, freight or customs duties, insurances, official authorizations, taxes and other duties or charges, which may be charged in addition to the price quoted and shall, without exception, be payable by the Customer. Unless otherwise agreed in writing, Customer shall obtain at its own risk and expense any import license or other official authorization for the distribution of Products.
3.4 DKSH reserves the right to modify prices before shipment in case of substantial changes to the respective basis of calculation (such as – but not limited to - cost of materials and work as well as exchange rate fluctuations etc.) between the conclusion of a Contract and the agreed date of delivery. The Customer will be informed about such price changes, if any, as soon as possible. In no event the Customer is entitled to terminate the Contract because of a price increase.
3.5 Unless otherwise agreed by the Customer and DKSH in writing and to the extent permitted by all applicable laws, the Customer shall effect payment to DKSH within 30 (thirty) days of the date of the invoice (“Due Date”), in the currency and to the account stated on the invoice. Any right of set-off or counterclaim, or abatement, or other similar deductions by the Customer is expressly excluded and the application of Articles from 1241 to 1252 of the Italian Civil Code is expressly barred and excluded.
3.6 If payment is not made by the Due Date, Customer shall be automatically and immediately in default pursuant to Article 1186 of the Italian Civil Code and default interests will automatically accrue from the day after the Due Date until payment in full has been received by DKSH pursuant to Article 4 of the Legislative Decree No. 231/2002, and in the amount set forth under Article 5 of such Legislative Decree No. 231/2002. DKSH also reserves the right to file further claims for losses incurred through the payment default e.g. lawyer costs, administration fees etc. and Customer shall indemnify DKSH for all the costs incurred by DKSH or its agents in recovering the outstanding invoices.
3.7 Notwithstanding anything to the contrary herein or in a Contract between DKSH and the Customer and without prejudice to any other rights and remedies available to DKSH, DKSH may at its option:
a) terminate the Contract pursuant to Article 1456 of the Italian Civil Code and/or according to any other right and remedy available under the applicable law; and
b) suspend deliveries of Products and/or performance of Services without liability to the Customer pursuant to Articles 1460 and 1461 of the Italian Civil Code and/or according to any other right and remedy available under the applicable law; and
c) claim any possible indemnity, damages, and the like, from the Customer according to any right and remedy available under the applicable law; and
d) accelerate and make immediately due the payment of any outstanding sums according to Article 1186 of the Italian Civil Code and/or according to any other right and remedy available under the applicable law in case the Customer:
(i) ceases to carry on business, is dissolved, or winded up; and
(ii) breaches its obligation under a Contract and does not remedy such breach within the period required by DKSH pursuant to Article 1454 of the Italian Civil Code; and
(iii) is in such a financial situation, or undergoes reorganization or any other situation that, in DKSH’s sole discretion, adversely affects the financial position of the Customer and/or jeopardizes the fulfillment of its obligations under a Contract; and
(iv) is subject to proposal to the creditors of a restructuring agreement and/or arrangement with creditors pursuant to Articles 160 and 182 bis of the Italian Bankruptcy Law (i.e. Royal Decree No. 267/1942) and/or according to any other right and remedy available under the applicable law.
4. Transfer of Benefits and Risks and Retention of Title
4.1 The transfer of benefits and risks to the Customer shall occur according to the provisions of the respective Contract and the Incoterms as specified therein. If the Contract does not contain such provisions, Article 1523 of the Italian Civil Code regarding the transfer of risks shall apply.
5. Delivery, Performance of Services
5.1 DKSH will use its commercially reasonable endeavors to deliver Products and/or perform Services by the dates set forth in the relevant Contract, but such dates shall be treated as approximate only. DKSH shall notify the Customer as soon as practicable in case of delay.
5.2 5.2 Customer is obligated to accept deliveries/performance of the Services regarding Orders made even if the respective deliveries occur with delay. In no event the Customer is entitled to terminate a Contract and/or to cancel an Order and/or to demand/claim damages, compensations, indemnities, and the like, in case of a delay in delivery.
5.3 Unless otherwise agreed by the parties in writing, partial shipments or partial deliveries are permitted.
5.4 Discrepancies in quantities of up to 10%, calculated on the basis of the entire quantity to be delivered and not the individual partial quantities actually delivered, shall be permissible.
5.5 If the Customer fails to accept delivery of Products, DKSH may in particular, but not exclusively (i) store Products and charge the Customer for the costs of storage, or (ii) upon reasonable notice to the Customer, sell Products at the price readily available and charge the Customer for any difference between the Contract price and the price actually realized, plus storage and selling costs.
6. Packaging Material
6.1 DKSH shall not take back packaging and transport material unless a legal duty to do so exists under applicable law.
6.2 The Customer agrees to dispose of the packaging material at its own expense.
7. Inspection
7.1 Immediately upon delivery of Products and on completion of performance of Services, the Customer shall inspect the Products/Services for defects and deficiencies.
8. Complaints/Notification of defects
8.1 The Customer must notify DKSH in writing of any complaints about the delivered Products and/or Services, in particular of any shortages or defects, promptly upon delivery and in no event later than eight (8) days of delivery of Products and/or performance of Services or, in case of hidden defects, immediately after their discovery and in no event later than (8) days of delivery of Products, but – in any case – within the warranty period indicated in Article 9 of this GCS [i.e. subject to the limitations on its liability set out herein, and unless otherwise agreed in writing, within six (6) months of delivery of Products and/or performance of Services]. In case of noncompliance with this provision (e.g., untimely notification of defects and deficiencies, etc.), the Products and Services are deemed to be approved and accepted by the Customer and the Customer shall lose all of rights and claims related to the warranty, damages, and ability to dispute defects or deficiencies of such Products and/or Services.
8.2 Pursuant to Article 1462 of the Italian Civil Code, timely reports of defects or deficiencies do not relieve the Customer from its obligation to pay and accept all Products and/or Services that the Customer has ordered.
9. The Customer’s rights in case of defects
9.1 Subject to the limitations on its liability set out herein, and unless otherwise agreed in writing, DKSH warrants for the duration of six (6) months from the date of delivery that the Product shall comply with the specifications provided in the relevant Contract. DKSH must be timely notified of each defect or deficiency in accordance with provisions 7 and 8. DKSH warrants that the Services shall be performed with reasonable skill and care. SUCH WARRANTIES ARE PROVIDED TO THE EXCLUSION OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY LAW, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. A warranty of DKSH shall be excluded in particular in case of defects or deficiencies of the Products delivered due to (i) non-authorized, inappropriate or improper use of Products by the Customer or third parties, or (ii) negligent application of the Products by the Customer or third parties, or (iii) other reasons beyond the control and sphere of influence of DKSH.
9.2 Where a valid and timely claim in respect of Products or Services is based on a breach of the warranty set forth in clause 9.1 and is submitted to DKSH in accordance with clause 8, DKSH may, at its discretion, replace, repair, re-perform or modify the Products or Services or any part thereof, or refund the full or partial price thereof, as applicable. All further claims of a Customer, including in particular any sort of damage claims, are excluded as far as permissible under applicable law.
9.3 Any return of Products to DKSH in connection with a warranty claim can only be done upon DKSH’s prior written permission and respective instructions. Shipping costs are to be paid by the Customer. Any return of Products shall occur for the account and risk of the Customer.
10. Limitation of liability
10.1 All kinds of breaches of Contract and their legal consequences as well as all claims of the Customers, irrespective of the legal grounds they are based upon, are exclusively controlled by these GCS. In particular, all claims for damages, mitigation, contract termination or rescission are excluded except as expressly set forth herein, and subject to the application of the mandatory provisions provided by law.
10.2 IN NO EVENT SHALL DKSH NOR ANY OF ITS AFFILIATES OR EMPLOYEES BE LIABLE TO THE CUSTOMER OR ANY OTHER PERSON, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO ANY CONTRACT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN ANY EVENT DKSH’S MAXIMUM CUMULATIVE LIABILITY TO THE CUSTOMER SHALL BE LIMITED TO THE INVOICE VALUE OF THE GOODS SUPPLIED AND/OR SERVICES RENDERED UNDER THE RELEVANT CONTRACT.
10.3 This exclusion of liability shall not be valid as far as it is contrary to mandatory law. In particular, nothing herein excludes DKSH’s responsibility for intent or gross negligence.
11. Confidentiality
11.1 The Customer shall treat all Confidential Information (as defined below) strictly confidential and shall not disclose Confidential Information, or cause or allow it to be disclosed, to any third party or use Confidential Information for any purpose other than reasonably necessary in order to fulfill its obligations under these GCS or a Contract between DKSH and the Customer. The Customer shall disclose Confidential Information only to those of its officers and employees who need to know Confidential Information in connection with the fulfillment of these GCS or a Contract between DKSH and the customer and who are bound by confidentiality obligations at least as restrictive as those contained in this clause. In any event, the Customer remains liable for any breach by its officers or employees of any confidentiality obligations hereunder.
11.2 “Confidential Information” means any information contained in a Contract between DKSH and the Customer and any information provided by or on behalf of DKSH to the Customer (in particular but not limited to information regarding pricing, financial information, market information, methods of distribution, customer data, data of employees, manufacturing and technical information and know-how). Notwithstanding the foregoing, Confidential Information does not include information that (i) is rightfully known to the Customer at the time of disclosure as demonstrated by the Customer’s written or electronic records, (ii) is or becomes part of the public domain through no wrongful act of the Customer, (iii) has been rightfully received by the Customer from a third party authorized to make the disclosure without restriction, (iv) has been approved in writing by DKSH for release or (v) is independently developed without benefit of the Confidential Information.
11.3 This clause 11 shall survive the termination or expiration of any Agreement by five (5) years.
12. No Assignment
12.1 The Customer shall not be entitled to assign a Contract or any of its rights and obligations under these GCS or a Contract between DKSH and the Customer without DKSH’s prior written consent.
13. Compliance with laws
13.1 Unless otherwise agreed in writing, the Customer shall be responsible for compliance with statutory and regulatory requirements relating to export, import, transport, storage and use of the Products and/or Services.
13.2 Insofar as the performance of a contract by DKSH would result or would likely result in the infringement of national, foreign or international (re-)export control laws or other laws, DKSH shall be entitled to rescind the respective contract.
13.3 If export control checks are required, the Customer will provide DKSH immediately upon request with all information pertaining to the final recipients, destination and purpose of the products to be supplied by DKSH as well as any related export control restrictions.
13.4 In all instances, the Customer must comply with (re-)export control regulations of Italy, the European Union and the United States. Furthermore, the Customer shall comply with all the applicable Export Compliance Laws and Regulations in connection with the purchase of DKSH’s Products and/or Services and in connection with the resale of such Products and/or Services to the Customer’s clients/customers. For the sake of clarity, “Export Compliance Laws and Regulations” shall mean any applicable laws and regulations regarding economic sanctions, prohibitions, import, transfer, or export restrictions imposed by the United Nations (U.N.), the United States (U.S.), the European Union (E.U.) and by any other applicable country, including but not limited to Italy. This includes, but is not limited to:
- applicable laws and regulations regarding import, export and re-export, transfer restrictions related to military and dual-use commodities/products, software and technologies, chemical precursors (drugs and explosives), dangerous chemicals and pesticides, substances that deplete the ozone layer, etc.; and
- applicable laws, regulations, United Nations Security Council resolutions, and other international sanctions, sanctions of Switzerland, the United Kingdom, the European Union, the U.S. Specially Designated and Blocked Persons List (SDN), the U.S. Export Administration Regulations (EAR) that impose trade restrictions and embargoes and prohibit certain dealings with the governments, legal entities, companies, and nationals of the countries named therein; and
- applicable laws and regulations prohibiting transfers of products, services, software or technology that will directly or indirectly support nuclear explosive activities, unsafeguarded nuclear activities, nuclear fuel cycle activities, nuclear propulsion activities, or the design, development, production, stockpiling, or use of chemical weapons, biological weapons, missiles, rocket systems or unmanned aerial vehicles.
13.5 The Products and/or Services purchased by the Customer from DKSH shall be purely used by the Customer’s customer/clients for civilian end-uses by civilian end-users. Therefore, the Products and/or Services shall not be used by the Customer itself and the Customer’s customer/clients in the design, development, production, manufacturing of military applications, nuclear, space launch vehicles, satellites, armored vehicles, unmanned aerial vehicles (UAV), target drones, reconnaissance drones, or the launch or operation of any ballistic missile systems, rocket systems, sounding rockets, cruise missile systems, or any missile delivery system for weapons of mass destruction, unless where the aforementioned applications are agreed in advance by DKSH and by the competent authorities in writing. Moreover, the Products and/or Services purchased by the Customer from DKSH will not be used for and/or in connection with, internal repression, human rights violations, production of chemical or biological weapons of mass destruction, any military or paramilitary organization, armaments, nuclear technology, or weapons.
13.6 The Customer shall in no event and by no means, commercialize, export or re-export the Products and/or Services purchased from DKSH, through direct or indirect means, to:
- any legal entities/companies and persons on the Sanctions List of Italy, Switzerland, the United Kingdom, the European Union, the United Nations or on the U.S. Specially Designated and Blocked Persons List (SDN); and
- any legal entities/companies and persons on the U.S. Consolidated Screening List (CSL) in case the Products and/or Services are subject to the U.S. Export Administration Regulations (EAR), without having obtained the relevant license under the U.S. EAR.
13.7 Furthermore, the Customer shall always be responsible for compliance with all applicable laws and regulations related to anti-bribery, anti-corruption, conflict of interest laws, rules or regulations of similar purpose and effect, including, without limitation the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997, sec. 322ter et seq. Swiss Criminal Code and sec. 4a Swiss Act against Unfair Competition, the US Foreign Corrupt Practices Act 1977 as amended from time to time, the UK Bribery Act 2010, and sec. 299 et sqq., sec. 331 et sqq. German Criminal Code, the German Act on Combating European Bribery, and the German Act on Combating International Bribery (hereafter collectively “Anti-Corruption Laws”).
13.8 The Customer shall indemnify, defend, and hold harmless DKSH from any and all claims damages, losses, liabilities, costs and expenses (including but not limited to court costs and attorneys' fees) arising out of any claim, inspection, audit, and etc. by regulatory authorities or other third parties and asserted against DKSH due to the Customer's failure to comply with the aforementioned obligations and agrees to reimburse DKSH for any and all resulting damages and associated expenses, provided that they are the result of the Customer's breach of duty.
14. DKSH’s Code of Conduct
14.1 The Customer and its officers, directors, employees and agents shall comply with all provisions of DKSH’s Code of Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies). Therefore, by placing any order to DKSH and/or by accepting any services from DKSH, the Customer (including its officers, directors, employees and agents) acknowledges to have taken note of DKSH’s Code of Conduct and commits to abide by it and to comply with it.
14.2 DKSH’s Code of Conduct is subject to updates and/or amendments from time to time and the Customer hereby accepts such updates and/or amendments (as made available at https://www.dksh.com/global-en/home/about-us/sustainability#policies, and/or as otherwise notified by DKSH).
14.3 The Customer understands and agrees that DKSH may collect information on the Customer (via due diligence, pre-agreed audits or otherwise) to verify its compliance with DKSH’s Code of Conduct, and the Customer agrees to furnish DKSH with or grant DKSH access to such information as reasonably requested by DKSH from time to time to conduct such verification. Where DKSH has reason to believe or suspect that the Customer is in breach and/or falls short of expectations to comply with DKSH’s Code of Conduct, the Customer acknowledges DKSH’s right to turn down business opportunities or to seek discontinuation of the relationship, unless DKSH and the Customer agree on collaborating towards establishing adequate improvement plans and actions to address DKSH’s findings resulting from due diligence, pre-agreed audits or otherwise.
15. Requirement of written form
15.1 No amendments or waiver of any provision of the Agreement shall be valid unless made in writing.
16. No waiver
16.1 No failure on the part of either party in exercising any right, power or remedy under the Agreement will operate as a waiver thereof.
17. Severability
17.1 In the event that any of the terms or provisions of these GCS is determined to be invalid, illegal, void or in conflict with regulations or rulings of authorities, governmental or other, or otherwise unenforceable, or if any provision or term of these GCS shall become invalid, illegal, void and/or unenforceable at any time hereafter, all other provisions of the GCS shall be severable and shall remain valid, binding and enforceable in accordance with their terms, and the parties agree that a provision which shall be determined to be or which shall become invalid, illegal, void or unenforceable, shall be substituted by another suitable provision which shall maintain the purposes and the intentions of the parties.
18. Force Majeure
18.1 DKSH shall be excused from its obligation and performance under any Contract and shall not be liable to Customer for any damage, loss, cost or expense which Customer may suffer as a direct or indirect result of such non-performance under any Contract in case: (i) the supply of Products and/or performance of Services is prevented, interrupted, hindered, and/or delayed by any circumstances or events beyond DKSH’s reasonable control, or if such supply/performance is rendered uneconomic; or (ii) the failure in performing any obligation, is caused by any circumstances or events beyond DKSH’s reasonable control such as (without limitation) failure of DKSH’s supplier to deliver, lack of raw material or energy, fire, act of God, interruptions in traffic, or war, riots, acts of terrorism, strikes, lock-outs, order, law, regulation, demand or requirement of any governmental body or agency (“Event of Force Majeure”).
18.2 Any obligations of DKSH under any Contract will be suspended for the period of the Event of Force Majeure. If the Event of Force Majeure extends beyond sixty (60) days, each party may terminate the Contract with immediate effect upon written notice without any liability to the other, except that the Customer shall remain liable for payment to DKSH for any Products delivered and/or Services performed prior to termination.
19. Data Privacy
19.1 Each Party (i.e. DKSH and Customer) may process personal data received from the other Party to the extent reasonably necessary in connection with this GCS and/or any Contract hereunder (in particular but not limited to its performance). When doing so, each Party shall perform its processing activities as autonomous controller, in compliance with applicable laws and regulations (including but not limited to the Regulation EU 2016/679 (GDPR) and the Italian Legislative Decree No. 196/2003, and any subsequent amendment). For further details as to the use by DKSH of personal data from Customer, please refer to the privacy statement available at https://www.dksh.com/global-en/privacy-notice-for-clients-and-customers.
20. Governing Law / Venue
20.1 The Contract(s), these GCS and all legal relations between the Customer and DKSH shall be governed exclusively by the laws of Italy to the exclusion of the laws on conflict of laws and of the United Nations Convention on Contracts and the International Sale of goods (CISG) of April 11, 1980.
20.2 The place of performance for all obligations shall be DKSH’s principal place of business in Milan, Italy. Therefore, any disputes arising out of or in connection with the Contract(s), these GCS or any legal relations between the Customer and DKSH shall be resolved exclusively before the courts in Milan, Italy.
20.3 DKSH reserves the right to initiate debt collection or other proceedings against the Customer in any other place provided by law.
