1.1 The supply of polypropylene and engineering compounds (“Products”) produced by SIRMAX S.p.A (“SIRMAX”) shall be governed by these general terms and conditions. These general terms and conditions are an integral and essential part of the sale agreement of the Products (“Agreement”) that will be executed between SIRMAX and the Client. Any Agreement between the Client (and any company belonging to the Client’s Group) and any affiliated company and/or subsidiary of SIRMAX’s GROUP is subject to these general terms and conditions and to any other agreement existing between the contracting parties, unless otherwise agreed in writing.
1.2 In no event shall any general conditions of any nature inserted and/or specified in the Client’s orders, forms and/or in other documents sent to SIRMAX by the Client, and/or of which SIRMAX has been made aware of in any manner whatsoever, apply to the Agreement and the supply of the Products.
1.3 The Agreement comes into force between the parties upon the Client's receipt of SIRMAX's order confirmation or upload of SIRMAX’s order confirmation in the Client platform. It is understood that SIRMAX's order confirmation will be deemed tacitly accepted by the Client within 3 days as of the date of SIRMAX's order confirmation.
1.4 SIRMAX shall have the right to vary the range of the Products as well as to stop the production of one or more Products, at its own discretion, due to production or marketing reasons, or in case of entering into force of new rules related thereto, it being understood that the technical specifications of the Products shall not be jeopardised.
2. Place and terms of delivery
2.1 Products will be delivered according to the Incoterms® 2020 rule set forth in the Agreement. Partial deliveries are always allowed unless otherwise specified in the Agreement. SIRMAX shall not be responsible for any damage, loss or theft which may occur to the Products after delivery according to this section 2.1.
2.2 Under no circumstances shall the terms of delivery of the Products set forth in the Agreement be deemed as of the essence for the Client.
2.3 In case of delays in the delivery of the Products caused by a fortuitous event, force majeure, shortage of raw materials, or other causes not depending on SIRMAX’s willful misconduct and/or gross negligence, the Client shall not be entitled to claim any compensation for damages, nor to ask for the termination of the Agreement and/or price reduction.
2.4 In case of a delay in the collection of the Products exceeding 5 days from the agreed delivery date, the Client shall bear all the expenses concerning the occupation of the warehouse, which will be calculated by SIRMAX, without prejudice for SIRMAX right to claim for any further cost (e.g. demurrage costs, transportation costs etc.) arising from the late collection of the Products. In any case, the risk of damage, deterioration and/or theft of the Products shall be borne by the Client from the initially agreed delivery date.
2.5 The Client shall ensure that the Products can be freely imported in the country of destination. Limits or prohibitions which come into force in the country of destination at the time of importation shall not prevent the Client to pay the price of the Products.
3. Price and Payments
3.1 The price of the Products is determined (i) according to the criteria set forth in SIRMAX’s price list valid on the date of issuance of the order confirmation with reference to the delivery date and/or (ii) according to the formulas set forth in the Agreement. Notwithstanding the above, the Client acknowledges and accepts that, unless otherwise indicated in the Agreement, the price of the Products may vary according to an increase in the cost of the raw materials higher than 5%.
3.2 In the event the Agreement refers to annual forecast or open orders of Products the price of the Products shall be initially agreed between SIRMAX and the Client. Irrespective of the above, SIRMAX will be entitled to vary the price of the Product taking into consideration different variables, amongst which the trend of the price of raw materials and additives, the transformation costs, the exchange rate, the customs duties (if and when applicable).
3.3 Unless otherwise specified in the Agreement, the price of the Products shall be paid by the Client within 30 days as of the date of the invoice. Any late collection or non-collection of the Products by the Client shall not cause an extension and/or postponement of the terms of payment. In case of late payments, the Client shall pay interests on the unpaid amount at the rate provided by the Italian law.
3.4 SIRMAX shall be entitled to suspend the delivery of the Products: (a) should the Client’s assets and/or financial standings endanger the relevant payment; (b) should the Client fail to timely pay Products previously supplied by SIRMAX, also on the basis of other contractual relationships, until full payment of the outstanding credit and/or until receipt of proper guarantees for any delivery in progress, without prejudice to SIRMAX’s right to terminate any relevant Agreement and to claim for the damages suffered as a consequence thereof.
3.5 In no event shall any claim for defected Products and/or any delay of delivery as to the agreed terms give the Client the right to suspend the relevant payments and/or any other payment for whatever reason due to SIRMAX also under other contractual relationships.
3.6 The Client has no right to setoff or deduct from any sums owed to SIRMAX under the Agreement any and all sums owed by SIRMAX to the Client under any Agreement.
4. Retention of title
4.1 In case of installment payments, SIRMAX shall be the sole owner of the Products until the date of their full payment.
4.2 The Client undertakes to take all necessary measures to set up a valid reservation of title, to the extent permitted by the applicable law, and to work with SIRMAX to establish all adequate measures to protect the property rights of SIRMAX.
4.3 Should the Agreement be terminated due to the Client’s breach of contract, the installments already paid by the Client shall be kept by SIRMAX as an indemnity, within the limits set forth by the applicable law, without prejudice to SIRMAX’s right to claim for further damages.
5.1 Products are supplied by SIRMAX according to the technical sheets, declarations of conformity and standards expressly specified in the Agreement as well as to the statutory and regulatory requirements applicable in the country of production of the Products. Any other standard, rule and regulation other than those specified in the Agreement shall not apply to the supply of the Products. SIRMAX provides no implied warranty of fitness for a particular purpose of the Products.
5.2 The weights, dimensions, performance index and other data reported in SIRMAX’s catalogues, advertisements, illustrations constitute approximate specifications. The said data and information are not binding upon SIRMAX unless expressly provided in the Agreement.
5.3 The Client shall inspect the Products upon receipt for visible defects and conformity to the technical standards. In the event of a defect or non-conformity to the technical standard, the Client shall claim SIRMAX immediately in writing highlighting the discovered defect/ non-conformity, the time of discovery, the identification of the products.
5.4 Subject to the loss of warranty, the Client shall notify SIRMAX in writing within 8 days as of the discovery of any hidden defect, by registered letter return receipt requested – or equivalent means. The warranty term is of 1 year as of the date of delivery of the Products. In case of defected Products and complaints raised by the Client which are accepted and acknowledged by SIRMAX, the latter shall replace the defective Products. It is understood that the warranty obligations herewith undertaken shall be effective and binding upon SIRMAX only provided that the latter has the opportunity to verify the defects raised by the Client. SIRMAX’s warranty obligation shall be deemed as fully fulfilled with the replacement of the defective Product, without any further obligations.
5.5 Any use of the Product, as well as late and/or lacked inspection or claim made by the Client or any supplier/sub-supplier/partner of the Client constitutes acceptance of the same Product.
5.6 The warranty is expressly excluded for defects of the Products arising from or consisting in:
• alteration and/or modification of the Products not authorized in writing by SIRMAX;
• improper use of the Products or any use other than the intended use of the Product;
• improper deposit and/or maintenance of the Products or improper deposit and/or maintenance not in compliance with SIRMAX's instructions;
• any processing or finishing made by a third party or by the Client.
5.7 Without prejudice to the compulsory product’s liability law and any liability for willful misconduct and/or gross negligence, SIRMAX shall not be liable for direct, indirect or incidental damages caused to the Client and/or to third parties as a consequence of the defects of the Products.
5.8 In no case shall the aggregate SIRMAX’s liability for damages arising out of defects of the Products, pursuant to the Agreement exceed their aggregate price.
5.9 To the extent permitted by the applicable law and without prejudice to the mandatory rules, the warranty terms and obligations binding upon SIRMAX for any Product merely sold or distributed by the latter shall be those set forth by the relevant manufacturer. SIRMAX will provide the Client with information on the said warranty terms and obligations either in the Agreement and/or in SIRMAX’s website.
6. Exclusive Jurisdiction - Arbitration clause
6.1 Should the Client is established in a Member State of the EU, the court of Padua (Italy) shall have exclusive jurisdiction for any dispute arising out of or related to the Agreement and/or to the supply of the Products.
6.2 Should the Client is established in a country outside the EU, any dispute arising out of or related to the Agreement and/or to the supply of the Products shall be finally settled by arbitration under the rules of the Milan Chamber of Arbitration (the “Rules”), by a sole (one) arbitrator appointed in accordance with the Rules. The site of arbitration shall be Milan, Italy. The language of the procedure shall be English also with reference to the documents that will be submitted.
7. Governing Law
These general conditions of sale and the any Agreement shall be governed by and construed in accordance with the Italian law.
Failure by SIRMAX to enforce at any time the provisions of these general conditions, shall not be construed as a waiver of such provision or of the right to thereafter enforce each and every provision herein.
9. Intellectual property rights - Confidentiality
9.1 The Client hereby acknowledges that any intellectual property right as well as any and all patterns, specifications, samples, designs, technical information or data related to the Products are and shall remain the exclusive property of SIRMAX. Nothing in the Agreement shall be construed as a license of transfer of SIRMAX’s intellectual property right.
9.2 The Client shall not make any modifications to the Products nor alter, remove or in any way tamper with the trademarks or any plate, trade name, information or number affixed or printed thereon.
9.3 For the purpose of this general terms and conditions and the Agreement, SIRMAX’s confidential information shall mean any and all proprietary information, including - but not limited to - technical, business, financial, economic, and other information of whatsoever nature, formulas, sketches, drawings, reports, contracts, graphs, procedures, techniques, sample which are communicated by SIRMAX to the Client either orally or in written form, or of which the Client become aware of during the negotiation, execution and performance of the Agreement and/or the supply of the Products. Without the prior written consent of SIRMAX, the Client shall not (a) disclose SIRMAX’s confidential information to any third party, and (b) use SIRMAX’s confidential information for any purpose other than the execution and performance of the Agreement. In the event SIRMAX and the Client execute a separate non-disclosure agreement which is inconsistent with this clause, the said non-disclosure agreement shall prevail.
10. Force majeure
10.1 No liability shall result to any party hereto for delay in performance or for non-performance of any obligation (except for the payment of any sum of money payable and due hereunder) if such delay or non-performance is caused by circumstances reasonably beyond its control, including but not limited to fires, floods, accidents, explosions, nuclear incidents, earthquakes, storms, epidemics, shortage or raw materials, breakdown of equipment or machinery, breakdown of IT systems, sabotage, strikes or other labour disturbances (regardless of the reasonableness of the demands of labour), civil commotions, riots, invasions, war (present or future, declared or undeclared), acts or omissions of any governmental authority (de jure or de facto), port congestion, acts of God.
10.2 The party claiming force majeure under this clause shall promptly notifies the other party of such circumstances in writing, giving full particulars of the causes relied upon and their anticipated duration.
10.3 Upon remedying or overcoming such cause, the party claiming Force Majeure shall promptly notify the other party of the termination of such Force Majeure condition.
10.4 Any party hereto shall have the right to terminate the Agreement upon written notice should the Force Majeure lasts for more than 4 months.
10.5 It is agreed that the current COVID-19 pandemic shall be deemed Force Majeure.
The Client shall not assign the Agreement to any third party without SIRMAX prior written consent.