1) Subject of the Contract
The subject of the Contract includes the realisation and sale by BMC to the customer of filter or extractor unit samples also involving patents owned by BMC. The subject is limited to the sale of samples as such, with the exclusion of any right inherent to intellectual property. Therefore, the delivery of the product does not entail any derogation of BMC’s rights inherent to intellectual property. The realisation of the samples is performed based on their possible mass production.
2) Customer’s obligations
The Customer is obligated to:
a. provide BMC all necessary information and adequate technical support to allow BMC to understand the Customer’s technical requirements;
b. perform the sample testing with the greatest diligence, including tests on sizes, functionality of achieving performance and material quality and to promptly return the product validation certificate and relative specifications as per art. 3 of the general conditions to us.
3) Product validation certificate and relative specifications (MOD07/0306)
The product validation certificate includes the sample testing results pertaining to sizes, materials, functionality and performance and concludes with a judgement on the outcome of the testing (positive or negative). If the testing is positive, the certificate confirms compliance with the Customer’s specifications of the sample subject of the testing (as per the BMC design code indicated on the certificate and the prototype sent by BMC) and indicated on the BMC design marked with the number indicated on form MOD07/0306 signed by the Customer confirming receipt.
4) BMC’s obligations
4.1 BMC is obligated to diligently pursue the goal of realising the samples to meet the Customer’s requirements.
4.2 In the event it is not able to realise the sample and/or realise a sample able to pass the testing, the Contract shall be terminated and the Customer shall be barred from making any claims for compensation for damage and/or indemnification of any kind.
5) Intellectual property, prints
The designs and prints inherent to the products and relative intellectual property are the exclusive property of BMC, which has and shall provide to register invention and/or drawing and/or model patents at its own discretion inherent to the products; it can also use them for other customers.
In the event the Customer sends BMC instructions concerning modalities to follow and/or recommendations, even by sending BMC designs it has realised, the Customer shall not acquire rights of any kind to the designs and/or models.
Therefore the Customer cannot reproduce or have the samples reproduced by third parties, which would result in the violation of BMC’s rights inherent to intellectual property, including the relative know-how.
The Customer acknowledges that in order to determine the price to transfer the samples to it, BMC only considered the cost to realise the sample, which does not include feasibility studies and/or those inherent to research investments made.
The Customer is responsible for ascertaining the conformity of the sample with the requirements and shall do so through the control and testing procedure. Therefore, BMC offers no warranties, barring the case of fraud and gross negligence except the ownership of the industrial patent rights used to realise the sample.
7) Applicable law
The Contract is subject to Italian law.
8) Place of jurisdiction
The Parties are obligated to transfer all and any controversies between the Customer and BMC to the exclusive place of jurisdiction of Bologna (Italy), excluding any other concurrent place of jurisdiction.
9.1 BMC assures the purchaser that it shall comply with the legislation concerning processing personal information regulated by the Privacy Code as per Italian Legislative Decree no. 196 dated 30.06.2003. BMC S.r.l. is the owner of the right to process the information. Its head office is in Italy at Via Roslé 115, 40059 Medicina (Bologna). Any personal information in the possession of BMC shall be processed for the subsequent purposes:
a. purposes connected and instrumental to the execution of the Contract in compliance with the general sales conditions between the purchaser and the seller, including: the computer system management, payment management, shipping and dispute management, as well as the relative administrative, fiscal and accounting fulfilments;
b. market research, sending advertising material, marketing and sales information activities concerning BMC products in any manner and using any method, statistics and recording Customer satisfaction level concerning the quality of the products and the activity performed by BMC or by third parties, performed directly or through the work of specialised companies.
9.2 The personal information cannot be processed for the purposes of the aforementioned paragraph through the use of computer procedures, telefax, telephone, e-mail, and other computer and/or automated communication systems.
9.3 Through a written request, the purchaser has the right to know at any time, the personal information BMC has in its possession and to know how it is used; it also has the right to update, modify and integrate the information and to cancel it, as well as the right to oppose to the processing thereof for the purpose of sending advertising material, direct sales or market research.
BMC Rif. 7845/8099/35620/2007
TERMS OF SALES
1. Validity of General Terms of Sale
All sales are considered as being made under the General Terms of Sale provided by the vendor (BMC) and each order transmission implies the acceptance of such terms by the purchaser.
Exceptions to General Terms of Sale will be valid only when expressly approved in written form by BMC.
2. Orders and confirmation of orders
Requests for supplies sent to BMC assume the value of contractual proposal and are irrevocable by the purchaser for a period of 60 days. After receiving the request for supply, BMC will send its own confirmation of order containing all the contractual terms and request the return of the same bearing the purchaser’s signature for acceptance. The contract will be deemed ready for execution only after BMC has received the confirmation of the order signed by the purchaser for acceptance. Whenever the order is modified or even partially or totally cancelled by the purchaser within the above-mentioned 60 day period, the purchaser will be required to pay a penalty equal to 20% of the total value of the goods listed in the order cancelled with all rights to further damage reserved.
3. Subject of supply
The supply includes only the goods and services specified in the BMC order confirmation; all other goods or services will be billed separately.
Barring particular terms expressed in written form, the sales prices will be those indicated in the BMC national price-list in force at the moment of signature of the respective contract. These prices must be considered ex-vendor’s warehouse and net of all taxes and duties.
5. Delivery and shipping
The terms of delivery must be considered purely approximations and not binding for BMC. The purchaser agrees that any delays in the delivery of the goods after the date indicated will not provide grounds for reimbursement. The delivery of goods is also subordinate to the punctual execution of all payments agreed and due. Goods will be shipped at the purchaser’s responsibility and expense and travel at the latter’s own risk and peril even whenever special agreements specify free delivery to a destination.
Payment must be made upon the delivery of the goods only and exclusively to the representatives expressly authorized for such purpose by BMC, unless other methods of payment are specifically indicated in the contract or order confirmation. In any case, even the partial failure to make one of the payment installments and solely as a result of such failure without requiring the purchaser to be declared in arrears, the following consequences will be produced in application of the regulations in force:
a. interest in arrears must be paid to BMC from the date scheduled for payment until the date payment is made at the rate established by the combined content of Articles 4. and 5.1 of Law Decree No. 231/2002 regulating measures for delayed payments in commercial transactions. Such rate will be equal to the latest prime interest rate applied by the European Central Bank on the first calendar day of the semester in question more seven percent;
b. BMC reserves the right to immediately interrupt any further supplies even if they concern other contracts;
c. the purchaser must consider himself deprived of the benefit of the term, and BMC will consequently be entitled to immediately request the payment of the entire sum of credit due for all supplies not yet paid for.
7. Warranty and reporting defects
BMC guarantees the quality of its products and the absence of defects from the same.
7.1 The purchaser is required to check that the products delivered correspond with those ordered and to make sure that all such products are provided with the contractual characteristics settled, while agreeing to report any shortcomings and/or defects by fax and enclosing a copy of the respective shipping document signed by the shipper to the BMC Medicina office within and no longer than 8 days after the date of receiving the goods for risk of forfeiture of all further rights. In any case, BMC liability for the presence of defects or shortcomings in quality will be limited to the obligation to replace the defective products or products not in possession of the contractual characteristics agreed within reasonable terms and with the expressed exclusion of rights to subsequent reimbursement or any further claims for damage.
7.2 Whenever a defect is reported, the defective product must be simultaneously placed at disposal with indication of where it can be inspected.
7.3 Whenever the existence of a defect is acknowledged, BMC will proceed to the replacement of the defective product at no expense to the client. Nothing else will be required from BMC because coverage under warranty is limited only to the replacement of the defective material.
7.4 Warranty coverage is provided for a period of two years starting from the product’s date of sale.
7.5 Warranty coverage is provided only on the condition that the BMC products have been assembled by specialized technicians and regularly serviced according to the Manufacturer’s specifications available on the website www.bmcairfilters.com and in the BMC catalogue. Warranty coverage is considered void whenever tampering with the products has occurred.
8. Homologation and conformity of the products to the law in the nations of use
The parties agree that filter provided by BMC has characteristics of filtration that have been previously agreed with the client, who has inspected and approved the final drawings drafted by BMC and proceeded to the testing of the samples with positive outcome. The endurance tests and every other trial necessary to ensure the perfect operation of the BMC filter in the application selected by the client are therefore the responsibility of the client and BMC has no obligation in this regard. The client is also obliged to make sure that the products are in conformity with their intended use and the laws in force in the nations of use and to obtain product homologation from the competent authorities whenever necessary.
BMC will not accept returns of its products for any reason. The only acceptable products returned will be those with defects, provided that such defects have been reported within the terms and methods indicated in General Terms of Sale, Art. 7.
10. Ownership of patents, designs and moulds – Constructive modifications.
Whenever the client requests modifications to the product or the creation of specific products, BMC reserves the right to perform the design and study for such modifications at a cost to be agreed separately. In any case however, all designs and equipment regarding BMC products remain the exclusive property of this latter, who is free to produce and sell such products to others.
11.1 The parties agree that all the documents and technical information on the products are strictly confidential and the exclusive property of BMC, and for such reason protected by obligatory secrecy.
11.2 The parties agree to refrain from disclosing or communicating confidential information to third parties and also to make every reasonable effort to ensure that such obligatory confidentiality is also respected by their employees.
12. Defense of privacy
12.1 BMC promises to respect the purchaser’s right to privacy in regard to his or her personal data as regulated by Privacy Law 196/30.06.2003. The owner of the processing of such personal data is BMC S.r.l. with registered office in Via Roslè 115, 40059, Medicina (Bologna). The personal data that enters BMC possession will be processed for the following purposes:
a. purposes correlated and instrumental to the execution of the contract in conformity with the General Terms of Sale between vendor and purchaser, including the management of the information technology system, the control of payments, the management of shipments and complaints, and the respective administrative, fiscal, and accounting obligations;
b. market surveys, the transmission of advertising material, marketing activities and commercial information on BMC products in any way and by any means performed; statistics, and surveys regarding the degree of customer satisfaction with the products and services offered by BMC or by third parties performed directly or through specialized companies.
12.2 Such personal data can be processed for the purposes mentioned in the above point by means of computerized and telematic procedures, telefax, telephone, e-mail, and other information technology and/or automated communication systems.
12.3 By providing written communication of such intent, the purchaser has the right at any moment to learn the nature of the personal data possessed by BMC and how such data is used, together with the right to request the revision, correction, and integration or removal of such information, as well as the right to oppose the processing of such data for the purpose of transmission of advertising material, direct sales, or market research.
13. Competent Court and Law
This contract has been stipulated and will be regulated under Italian law. Any dispute between the parties regarding the stipulation, interpretation, execution or dissolution of this contract will be subjected to the exclusively competent decision of the Court of Bologna, with the express exclusion of any other legal venue claiming competence.
The Manufacturer reserves the right to modify the information and prices indicated in this catalogue in any moment without warning.
Every term of sale and price listed in this catalogue will be valid as of the date of issue until their next revision.