GENERAL TERMS AND CONDITIONS OF MELCHIONI MOTION

SALE

The sale of products and services (“Products”) by Melchioni Divisione Motion (“Melchioni”) to a customer (“Customer”) is subject to these terms and conditions (“Agreement”) regardless of any other terms or conditions in any purchase order, document or other communication from the Customer (“Order”). Melchioni objects to such other terms. This Agreement may be amended only in writing and signed by authorised representatives of both Melchioni and the Customer.

ORDERS

Purchase orders for Products may be sent by the Customer via the Internet. The order will be considered as a contractual proposal. Unless otherwise indicated, for orders submitted online, Melchioni’s acceptance may also take place through direct fulfilment of the orders, without the need for prior formal acceptance of the order. All Orders are subject to acceptance by Melchioni. Contracts between the Customer and Melchioni are concluded following written acceptance by Melchioni, acknowledgment or execution of the Customer’s Order by Melchioni, Electronic Data Interchange (“EDI”), and are subject to this Agreement. All Orders for Products that Melchioni identifies as non-standard are non-cancellable and non-returnable. Melchioni may identify Products as non-standard by various means, including quotations, Product lists, attachments or exhibits. The Customer may not change, cancel or reschedule Product Orders without Melchioni’s consent.

PRICES

The prices shown in the Catalogue or on the website www.melchionimotion.com are exclusive of VAT, which will be applied at the rate in force on the invoice date, and may be subject to changes.

Unless otherwise stated in a proposal, quotation or invoice issued by Melchioni, prices refer exclusively to the Products and do not include taxes, freight, duties, tariffs or any other charge or fee for additional services (collectively, “Additional Costs”). Unless otherwise stated in a proposal, quotation or invoice issued by Melchioni, the Customer is responsible for all Additional Costs. Prices are subject to change due to increases in manufacturers’ prices, changes in exchange rates or quotation errors.

TERMS OF PAYMENT

Payments may be made using the following methods:

by bank transfer: INTESA SANPAOLO – IBAN: IT73O0306901791100000003173
by bank receipt (RIBA)
by credit card or PayPal

For any further information or clarification in this regard, please contact our Administration Office at: amministrazione@melchioni.com. Melchioni in any case reserves the right to propose additional and different methods of payment. Payment is due as indicated on Melchioni’s invoice without set-off or any deduction for withholding taxes or for any other reason. On any overdue invoice, Melchioni may charge interest from the payment due date to the date of payment at the maximum rate permitted by applicable law, plus reasonable legal fees and collection costs, with a minimum fee of forty (40) euros for sales within the European Union, as required by applicable law. At any time, Melchioni may change the Customer’s credit terms. Melchioni may apply payments to any of the Customer’s accounts. In the event of the Customer’s delay in any payment, Melchioni may reschedule or cancel any pending delivery or order and immediately declare all outstanding invoices due and payable. Unless otherwise provided by applicable law, any credit notes issued to the Customer by Melchioni will expire if not used within twelve (12) months.

COUNTRY OF ORIGIN

Unless otherwise communicated in writing to the Customer, the information contained in the Catalogue does not constitute, nor should it be understood as, a statement of the country of origin, preferential origin, processing, manufacture or assembly of the products or any part thereof.

DELIVERY

All deliveries are EXW (Incoterms 2020 revision) unless otherwise agreed and countersigned between the parties specifying the new conditions. Same-day fulfilment, regardless of the transport system used and where possible, will generally be provided only for orders received on working days by 2:00 p.m. (applicable only for e-commerce sales). Melchioni is able to deliver in Italy with average lead-times of 24/48 hours. A “Scheduled Order” service with deferred delivery is also available. It is in any case understood that delivery terms are indicative and are not of the essence. Melchioni reserves the right to modify the shipping cost during the validity period of the Catalogue. Since the shipping costs shown in the Catalogue may not be up to date, Customers must check the relevant amounts on the website www.melchionimotion.com under the “General Terms and Conditions of Sale” label, “Deliveries” section. For orders not submitted online, if the transport cost is higher than that indicated in the Catalogue or on the website, the relevant amount will be communicated by Melchioni to the Customer before shipment, which will only take place after the Customer has accepted the new amount within three (3) days from Melchioni’s communication. Should Melchioni foresee that it will not be able to comply with the stated delivery terms, without this entailing any liability towards the Customer, it will communicate the new delivery conditions for the Product to the Customer, who must confirm the order as amended within three (3) days from Melchioni’s communication. If Melchioni does not receive any confirmation within the aforementioned period, the order will be deemed cancelled without any liability on the part of Melchioni. Unless otherwise agreed, delivery will be made to the address specified by the Customer in the order.

When the carrier responsible for the shipment delivers the goods loaded on EPAL pallets, they must collect an equal number of EPAL pallets in order to avoid subsequent charges.

INSPECTION OF PRODUCTS, DELAYS AND NON-DELIVERY

The Customer is required to carefully inspect the Products received at the time of delivery and to notify Melchioni in detail, within eight (8) days from delivery, of any defects found – or that could be found – following such inspection, or to submit any other claim relating to the Products. If the Customer fails to provide the above-mentioned notice, the Products will be deemed definitively accepted and in conformity with the order, without prejudice to the possibility, exercisable within and no later than one (1) year from delivery, to assert any hidden defects, provided that the relevant notice is given within eight (8) days from discovery (in accordance with Article 1495 of the Italian Civil Code).

It is understood that the Customer must refuse delivery by the carrier of packages with damaged packaging and must immediately inform Melchioni thereof; otherwise, the Products delivered will be deemed fully accepted in the condition in which they are at that time. For the purpose of inspecting the Products, the Customer acknowledges that Melchioni is not the author of any software that may be contained therein, nor has it reviewed such software. The Customer must therefore, under its own exclusive responsibility and before using the Product or item, carry out all checks that are reasonably necessary to verify that the software contained in the Products purchased makes them suitable for use and is not affected by computer viruses or other defects that could damage the item or any goods that come into contact with it.

CANCELLATION OF ORDERS

Orders paid by credit card that cannot be completely fulfilled based on stock availability will be partially cancelled and the relevant sums refunded. Furthermore, Melchioni reserves the right not to accept or to cancel any orders, regardless of whether payment has been received or not, by notifying the Customer by phone or e-mail within forty-eight (48) hours (excluding Saturdays and public holidays) from receipt of the order. If Melchioni does not accept or cancels an order for which payment has already been made, Melchioni will promptly refund the full amount received, according to the method indicated to Melchioni by the Customer for this purpose. It is understood that refund of the price represents the only obligation on the part of Melchioni in case of non-acceptance or cancellation of the order, and that any further liability of Melchioni in this respect is excluded. The Customer may cancel or revoke purchase orders only within the limits permitted by law or by these General Terms and Conditions.

TITLE

For sales outside the European Union, title shall pass to the Customer upon delivery of the Products to the carrier. For sales from within the European Union, as a form of security for payment, title shall pass to the Customer when the Customer has fully paid the price of the Product. In the event of a subsequent sale, the Customer assigns to Melchioni all rights to the related claims until the Customer has made full payment. Once the Product has been processed or combined with other items (“Processed Product”), Melchioni’s retained title transfers to a share of title in the Processed Product that reflects the value of the Product relative to the value of the Processed Product. This section does not apply to sales of Software (as defined below) and services.

SOFTWARE

Software is the machine-readable version (object code) of computer programs (“Software”). The Customer’s use of the Software and any related documentation shall be governed by the licence agreement applicable to the Software. Software embedded in or bundled with hardware must be used exclusively with the hardware for which it is intended and may not be transferred separately.

WARRANTY

The Customer acknowledges that, where Melchioni Motion is the manufacturer of the Products, the statutory warranty is equal to two (2) years, or for the duration that may from time to time be established by applicable legislation.

Where Melchioni acts as distributor, the warranty is two years unless otherwise indicated on the product sheet.

It is understood that the warranty will not apply if the Product is not properly maintained or shows evidence of conditions that are not covered by the warranty.

RETURN OF PRODUCT

The Customer may return Products to Melchioni only with a material return authorisation number (“RMA”) issued by Melchioni.

Melchioni issues an RMA provided that:

Returns for Visual Defect: Melchioni receives written notice of any damage to the outer packaging, damage to the Products, shortage of Products or other discrepancies (“Visual Defect”) within three (3) working days from receipt of the shipment; otherwise, the Products are deemed to have been accepted by the Customer;
Returns under Product Warranty: Melchioni receives written notice stating the specific defect of the Product within the warranty period;
The defect reported under items (i) or (ii) was caused exclusively by Melchioni or by the original manufacturer;
The defect notified under items (i) or (ii) is not damage, shortage or other discrepancy caused by the Customer, a carrier, a transport service provider or third parties;
The Customer returns the Products to Melchioni in accordance with the instructions contained in the RMA provided by Melchioni;
Melchioni’s evaluation of the returned Products confirms their eligibility for return under this section.

Melchioni may return Products that are not eligible for return under this section to the Customer on a freight-collect basis, or hold such Products for collection for the account and at the expense of the Customer.

PRODUCT INFORMATION AND AVAILABILITY

Unless otherwise indicated, the instructions for use of the purchased product, in particular regarding its safety, are indicated in the “technical parameters”. It is the Customer’s responsibility to verify in advance the suitability of the product for the use the Customer intends to make of it. In any case, Melchioni reserves the right to discontinue the offer of any product, or to make changes to product specifications, at any time, even without notice and without being required to give reasons for such decision.

Melchioni recommends that Customers check the dimensions and other data relating to the products published in the Catalogue or on the online showcase of the website www.melchioni-ready.com, as well as the future availability of such products, before using them for critical applications. The information contained in the Catalogue is, to the best of Melchioni’s knowledge, correct at the time of printing. If the Customer intends to resell the purchased products to third parties, it is the Customer’s responsibility to ensure that such products are supplied complete with all accessory elements such as warnings, labels, instructions, manuals and other useful information provided with the products.

LIMITATION OF LIABILITY

In any action under or in connection with this Agreement, whether based on contract, warranty, tort (including negligence) or any other legal theory, Melchioni shall not be liable for any indirect, special, incidental, punitive or consequential damages, including loss of profits, loss of revenue, loss of data, loss of use, rework, repair, production expenses, product recall costs, damage to reputation or loss of customers, even if Melchioni has been advised of the possibility of such damages and notwithstanding the failure of the essential purpose of any remedy under this Agreement.

In no event shall Melchioni’s liability arising out of or in connection with this Agreement exceed the total amount paid to Melchioni for the specific Products in question.

To the extent that Melchioni cannot legally disclaim any implied or statutory warranty, the Customer’s statutory warranty rights are not affected by this limitation of liability.

FORCES BEYOND MELCHIONI’S CONTROL

Melchioni shall not be in breach of this Agreement and shall not be liable for any failure to perform its obligations under this Agreement if such failure or delay is due to or arises from any force majeure theory of law, an act of nature, act or omission of the Customer, act of a governmental authority, including laws, regulations, orders or decrees, operational interruptions, natural or man-made disasters, epidemics, pandemics, shortage of labour, energy, fuel, materials or products, strike, labour action, criminal act, war, terrorism, civil unrest, delay in delivery or transport, inability to obtain labour, materials or products from normal sources, communications or power outages, act of God or any cause beyond its reasonable control.

USE OF PRODUCTS

Products are not authorised for use in life-support systems, human implantation, nuclear facilities or any other application in which failure of the product could lead to loss of life or damage to property. If the Customer uses or sells the Products for use in such applications, or does not comply with the manufacturer’s Product specifications, the Customer acknowledges that such use, sale or non-compliance is at the Customer’s sole risk. The Customer shall indemnify, defend and hold harmless Melchioni from any claim arising out of or resulting from:

(i) Melchioni’s compliance with the Customer’s designs, specifications or instructions;
(ii) modification of any Product by any party other than Melchioni;
(iii) use of the Products in combination with other products;
(iv) use of unauthorised Products as described above;
(v) the use of Products and related technologies in chemical, biological or nuclear weapons, missile systems (including ballistic missile systems, space launch vehicles and sounding rockets) or unmanned aerial vehicles capable of delivering the same, or in the development of any weapon of mass destruction.

EXPORT CONTROL

Certain Products and related technology (“Items”) sold by Melchioni are subject to the export control regulations of the United States, the European Union, Japan and/or other countries, excluding anti-boycott laws (“Export Laws”). The Customer must comply with such Export Laws and obtain any licences, permits or other approvals necessary to transfer, export, re-export or import the Items. The Customer acknowledges that the related technology consists of “Technical Data” and “Technical Assistance”. Technical Data may be in the form of designs, plans, diagrams, models, tables, engineering, design and specifications, manuals and instructions written or recorded on media or devices such as disks, tapes or read-only memories. Technical Assistance may be in the form of instructions, professional training, know-how or consulting services. The Customer must not export, re-export or transfer directly or indirectly (or cause to be exported, re-exported or transferred) the Items to any country, jurisdiction, individual, company, organisation or entity to which such export, re-export or transfer is restricted or prohibited by Export Laws, including sanctions or embargoes administered by the Government of the United States, the European Union, Japan or any other applicable governmental authority.

AMENDMENTS TO THE DOCUMENT OR CONTRACT

Amendments to this document or to the Contract may only be made in writing and shall take effect after acceptance by both Parties and in accordance with the procedures and consideration agreed between them. Melchioni reserves the right to modify these General Conditions from time to time and therefore invites the Customer to check the latest update on the Company’s website.

ELECTRONIC ORDERS

If any part of the purchase and sale of Products, including acknowledgment or demand forecasts by the Customer, uses EDI, the Customer’s internal portal, a third-party portal or any other electronic means (“Electronic Purchase Order”), this Agreement shall continue to apply to the purchase and sale of Products between the Customer and Melchioni. The Customer’s acceptance of Melchioni’s request for acknowledgment or specification of Melchioni’s details in relation to Electronic Purchase Orders by writing, e-mail or other EDI is binding on the Customer.

ENVIRONMENTAL COMPLIANCE

Where applicable, the Customer is responsible for all obligations and responsibilities under (i) the European Union Waste Electrical and Electronic Equipment Directive (2012/19/EU as amended), (ii) the Packaging Waste Directive (94/62/EC) and (iii) the Batteries Directive (2006/66/EC), all as amended, and all related national implementing measures in force from time to time.

GENERAL

This Agreement shall be governed by, construed and enforced in accordance with the laws of the country in which the Melchioni entity that has accepted the Customer’s Order is located (“Governing Country”), without reference to conflict-of-law principles.

Each party consents to the exercise by such courts of personal jurisdiction over them, and each party waives any objection it may otherwise have to venue, personal jurisdiction, forum non conveniens and any similar or related doctrine. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a jury trial in connection with any dispute directly or indirectly arising out of, under or in connection with this Agreement.

The Customer may not assign this Agreement or any rights or obligations hereunder without the written consent of Melchioni. Affiliates of Melchioni may fulfil Melchioni’s obligations under this Agreement.

If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the parties shall negotiate in good faith to amend this Agreement in order to implement the original intent of the parties as closely as possible to the maximum extent permitted by applicable law. The unenforceability or invalidity of any term or condition shall not affect the remainder of the terms or conditions.

The Products, including Software or other intellectual property, are subject to any applicable third-party rights, such as patents, copyrights and licences of use, and the Customer must comply with such rights.

The Customer is required to comply with all applicable laws, rules and regulations, including but not limited to anti-corruption laws and related local implementing legislation.

The Customer shall collect, process, store and transfer all personal data provided by Melchioni under this Agreement in strict compliance with applicable law, including but not limited to EU data protection principles and requirements. The Customer shall use – with Melchioni’s formal consent – and retain personal data solely for the purpose of facilitating communication and collaboration and for the purchase of Products from Melchioni under this Agreement and for no other purpose. The Customer must implement and maintain security procedures and practices appropriate to the nature of the personal data it collects, processes, stores or transfers in line with industry best practices. Where, under Regulation (EU) No. 679/2016 (GDPR), personal data of EU residents is transferred to countries outside the EU/EEA, the Customer must ensure by appropriate means that such personal data continues to be handled and processed in accordance with the data protection principles of purpose limitation and necessity; data accuracy, data quality and proportionality; data security and confidentiality. Data subjects’ rights (access, rectification, erasure and objection) must be ensured. Furthermore, the Customer shall reasonably assist Melchioni in promptly meeting requests received under applicable data protection laws. In the event that the Customer discovers or is informed of a data breach involving personal data provided by Melchioni, the Customer shall notify Melchioni of the data breach as soon as possible and in any case no later than twenty-four (24) hours after becoming aware of the data breach. The Customer shall take all necessary actions to contain the data breach and provide Melchioni with all information reasonably necessary about the data breach and corrective actions.

The parties agree that electronic signatures may be used for all purposes under this Agreement and will be legally valid, effective and enforceable for all purposes of this Agreement.

Product information (for example, statements or advice (technical or otherwise) contained in advertising and information relating to specifications, features, export/import control classifications, uses or compliance with legal or other requirements of a Product) is provided by Melchioni “AS IS” and is not part of the Product’s properties. Melchioni makes no representation as to the accuracy or completeness of Product information and DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND LIABILITY UNDER ANY THEORY WITH RESPECT TO PRODUCT INFORMATION. Melchioni recommends that the Customer validate any Product information before using or acting on such information. All Product information is subject to change without notice. Melchioni is not responsible for typographical or other errors or omissions in Product information. Employees, representatives and/or agents of Melchioni are not authorised to make any statements regarding Products other than those specified in this Agreement or in a written amendment signed to this Agreement. Melchioni shall have no liability for any statement or information that is not part of this Agreement.

GOVERNMENT CONTRACTS

Melchioni is a distributor of “Commercial Items” as defined. Melchioni cannot comply with any “Preference for Domestic Specialty Metals” regulations unless (A) there is an applicable exception or (B) the manufacturer represents and warrants that the Products are compliant.

APPLICABLE LAW AND JURISDICTION

For any dispute arising from the interpretation and performance of the contract and these General Terms and Conditions of Sale, Italian law shall apply and the Court of Milan shall have exclusive jurisdiction, to the exclusion of any other concurrent or alternative forum. If the Buyer is based in a non-EU country, all disputes arising out of the contract and these General Terms and Conditions of Sale shall be finally settled by one or more arbitrators in accordance with the rules of the Milan Arbitration Chamber at the Milan Chamber of Commerce. The seat of arbitration shall be Milan.