1.1. These General Terms and Conditions of Sale (“GTCS”) apply to the sale or supply of products (“Products”) and/or services (“Services”) by Tema Sinergie S.pA. (“Seller”) to the customer (“Customer”).
1.2. In addition to other arrangements specified by the Seller in the Order Confirmation (“OC”), the GTCS constitute the entire agreement between the Seller and the Customer. All other terms and/or conditions placed by the Customer in the Purchase Order (“PO”) or other communications sent by the latter to the Seller shall not be binding unless they are specifically accepted in writing by the Seller’s legal representative.
1.3. In the event of deviations in the content of the entire agreement, the GTCS and OC shall prevail over the PO, and the OC shall prevail over the GTCS.
1.4. Documents, catalogues and any other medium, of any kind, of an informational nature shall not be binding. The Seller may change, at any time and with no obligation to notify the Customer, any technical details in order to maintain or improve the performance of the Products.
1.5. The Seller shall not be bound by the Customer’s General Terms and Conditions of Purchase (“GTCP”), not even if reference is made to them or they are contained in the PO or in any other documentation from the Customer. The GTCP shall not be binding for the Seller, not even by tacit consent.
1.6. Where the Products and/or the Services have to be installed and delivered in a place that belongs to a third party (“End User”), the Customer undertakes to have the End User sign these GTCS for the proper fulfilment of the obligations set out herein.
2.1 The Customer places the PO based on the Offer that the Seller provides, stating the Scope of Supply and the Terms and Conditions of Supply.
2.2 The Offer is a document that is created progressively, which may be subject to subsequent revisions to allow the Customer to define the PO, through a fine-tuning and detailing process.
2.3 The Seller reserves the right to apply an hourly fee to assess revisions after the third version.
2.4 Unless the PO is placed within 30 days of receipt of the Offer and subsequent revisions, the Seller reserves the right to change the content of the Offer.
2.5 The PO is irrevocable and shall not be binding on the Seller unless confirmed in writing on the OC. Where the Seller has begun to fulfil the sale or supply without communicating the OC to the Customer, the latter may not revoke the PO which, therefore, will prevail over the GTCS in case of conflict.
2.6 After the OC, the Seller reserves the right, in all events, and at its own discretion, to submit technical specifications and/or general construction or installation drawings to the Customer, to finalise and confirm the details of the Product. These documents must be reviewed and approved by the Customer before the start of production. The Customer will also be required to inform the Seller in a timely manner about the logistical and/or organisational specifications for reaching the installation site.
2.7 If, after the OC and the start of production, a price increase becomes necessary, as a result of any change in the Scope of Supply requested by the Customer, the Customer shall pay said amount upon submission of a communication in which the Seller has stated the reasons for said increase. Likewise, the Customer shall accept, in such an event, any change to the delivery time.
3.1 Unless specifically agreed in writing, the following points are excluded from the supply (where applicable): (1) Risk Analysis on the Products; (2) Mechanical construction drawings; (3) Source software; (4) SW licences; (5) floor load tests and, where necessary, reinforcement work; (5) building works or preparation work for the installation of the Products, including the lighting system in the installation site; (6) checking routes and transits for the handling of Products from the unloading or storage area to the installation site; (7) electrical ducting; (8) laying electrical cables; (9) electricity network connections; (10) connections to technical gas networks, including compressed air; (11) connection to water networks, including demineralised water, purified water, water for injection; (12) connection to controlled drainage system and sewer network; (13) construction of exhaust ducts, where applicable, for ventilation of air related to the Products from the installation area to the outside of the building or other ducting; (14) FAT, SAT, IQ, OQ, PQ, DQ and other tests not specifically stipulated in a written agreement; (15) rental, where applicable, of lifting equipment (crane, forklift, pallet truck etc.) and transportation from the unloading or storage area to the installation area; (17) supplies not specifically mentioned in the Offer.
4.1 In order to obtain a proper installation service for the Products, the Customer and/or End User undertakes, at its own expense and effort, to: (1) ensure suitable safety conditions for technicians appointed by Tema Sinergie S.p.A. during the supply of the Products and, in particular, make certain that the equipment and environments are perfectly clean and totally free of potentially hazardous materials and/or substances; (2) ensure the presence of at least one of its operators during the interventions by the technicians appointed by Tema Sinergie S.p.A. with the technical ability and operational authorisation needed to ensure the safety of the Seller’s personnel; (3) drafting a prevention plan identifying the risks and prevention measures adopted and to be adopted to ensure the minimum safety and hygiene requirements set out in laws applicable at the site; said plan and the related requirements should be communicated in a timely manner to Tema Sinergie S.p.A. for the planning of the intervention; (4) take on the works involved in preparing and finishing the installation site, including the disposal of waste material, in accordance with the technical documentation supplied by Tema Sinergie S.p.A.
5.1.1 Preventive maintenance: regular technical intervention aimed at maintaining the perfect running and efficiency of the equipment to be maintained. The interventions will take place at regular intervals predetermined by the technical requirements established by the manufacturer of the equipment. If the manufacturer has prepared a checklist of maintenance activities, these will be supplied at the end of technical interventions. The schedule of the interventions will be agreed in advance.
5.1.2 Help Desk technical intervention: technical intervention carried out by personnel appointed by Tema Sinergie S.p.A. by remote connection (e.g. Virtual Private Network – VPN), telephone and/or e-mail following notification by the Customer of a failure and/or a problem and/or any need for clarification regarding the proper use of the hardware and software of the supplied system. In this event, the Customer must allow and provide the best access to the Products for the Seller’s personnel, in accordance with the Seller’s instructions. If the Customer is unable to provide access within the time limits set by the Seller, the latter reserves the right to send its own personnel to the Customer’s premises and the Customer will bear the cost of the compensation, transportation, board and accommodation of the Seller’s personnel.
5.1.3 On-site technical intervention: technical intervention carried out by specialized personnel appointed by Tema Sinergie S.p.A. to deal with hardware and/or software issues needing direct intervention on the Customer’s premises.
5.1.4 Carry-in technical intervention: technical intervention carried out on the premises of Tema Sinergie S.p.A. or at another site indicated by the latter to deal with an issue that cannot be solved directly on Customer’s site. In order to proceed with the intervention, the Customer will have the equipment or the part of it delivered to the premises of Tema Sinergie S.p.A. or to another site indicated by the latter.
5.1.5 Software update: it means an improved version of a software program that does not include important functional expansions. Software updates can be released for the following reasons: removal of programming errors; adaptation to new operating systems and/or new versions of operating systems.
5.1.6 Software upgrade: it means a new version of the software, which includes a significant increase in the functionality compared to the previous version, with considerable expansion of design specifications.
5.2.1 The technicians appointed by Tema Sinergie S.p.A. to carry out installation, maintenance or repairs are qualified as “exposed workers”, as set out in Annex III of Legislative Decree no. 230 of 17 March 1995 as amended, and the subsequent European Directives representing current European legislation on radiation protection; for such operators, Tema Sinergie S.p.A. complies with legal obligations.
5.2.2 The company’s contact details for technical assistance are:
Tema Sinergie S.p.A.
Via Malpighi, 120
48018 Faenza (RA)
Italy
Tel.: +39 0546 622663
Fax: +39 0546 621640
For assistance pertaining to Nuclear Medicine, Barrier Isolation Technology: support@temasinergie.com
For assistance pertaining to Radiotherapy, Diagnostic Radiology and Urology: support-rt@temasinergie.com
For assistance on Industrial Systems: support-ind@temasinergie.com
5.2.3 Schedule: calls will be taken and interventions will be carried out on business days (Monday to Friday) from 08.00 A.M. to 05.30 P.M. throughout the year. It is understood that different arrangements may be agreed between the Parties; indeed, the Seller is open to assessing different scheduling needs on a case-by-case basis.
5.2.4 Technical report: at the end of each technical intervention, a technician appointed by the Seller will issue a report drawn up in two copies, which will relate, for each item of equipment, any malfunctions found and the corrective action applied or recommended to ensure and/or restore the functioning of the equipment, and any materials used in the intervention.
5.2.5 Waste Disposal/Recovery: in order to meet legislative requirements and within the limits of the contract/order, the Customer and/or the End User is identified as the producer/holder of the waste produced as part of the contract/order in question, including the packaging. As holder, the Customer and/or End User is obliged, at its own effort and expense to: (1) identify and equip with suitable containers and appropriate signposting at the worksite/plant/facility a place for the temporary deposit of waste and to ensure access to it by Tema Sinergie S.p.A. during the period of installation/maintenance of the commissioned equipment/systems; (2) ensure the transportation, at its own expense and effort, whether directly or through authorised third parties, of the waste to authorised waste disposal/recovery facilities; (3) fulfil, where required, the obligations of keeping loading and unloading registers, issuing waste identification forms, SISTRI traceability documents and environmental declarations (MUD), in accordance with the laws in force and as amended; (4) specifically regarding the disposal of filters, to supply Tema Sinergie S.p.A. with instructions regarding the proper packaging for disposal of waste generated by the activities that are the subject of the contract, for the purpose of their deposit at the production site, as well as classifying the waste with a CER code and hazard characteristics, including chemical and physical analysis, where necessary.
6.1 The following remain excluded from the maintenance and assistance Services, unless expressly included in the OC: (1) calibration/adjustments (e.g. electrical and/or radiological of detectors/dosimeters/gauges…) not referred to in the Terms and Conditions of Supply; (2) damage and malfunctions due to and resulting from the insufficiency or inappropriateness of the systems for which the Customer is responsible (e.g. electricity, water, pneumatic system, air conditioning – HVAC, or alterations resulting from environmental, climatic or other conditions); (3) damage and/or breakdowns due to repairs carried out by unauthorised personnel or caused by neglect, negligence, tampering, disassembly, inability to use, improper and incorrect use of the equipment and any use that deviates from or is in conflict with the recommendations provided by the Seller or its assignors; (4) breakdowns and malfunctions resulting from the incorrect installation of the product, when this is the responsibility of the End User; (5) consultations regarding the systems, checks for the sake of convenience and any training sessions not specifically agreed upon; (6) repair/recovery/assistance made necessary by normal wear from use of the product or from use that deviates from or is in conflict with the instructions provided by the Seller or its assignors; (7) changes to the original state of the product (except those recommended by the manufacturer) and adjustments to any standards other than those in force at the time of its first testing; (8) damage caused by fire, the imperfect and/or unsuitable condition of the places housing the systems, natural disasters, riots, explosions, war; (9) use of consumable materials and/or parts that are subject to wear and tear other than those recommended by the manufacturer; (10) expenses and costs relating to the removal, handling, management (for any reason) of radioactive sources and materials in general; (11) supply of hardware upgrades; (12) supply of new optional software modules; (13) supply of instruments on temporary loan for the time needed for repairs/recovery/assistance; (14) supply of consumables (including, for example, filters, daily single-use kits, thermoplastic masks, gloves, …) and materials subject to wear and tear and/or ageing (including, for example, radioactive sources, batteries, accumulators, UPS, cables, …); (15) replacement and/or repair of any type of tank for disposal systems; (16) replacement of irreparable dose calibrators and detectors; (17) any intervention not specifically mentioned in the Offer.
7.1 In order to obtain a proper maintenance and assistance service, the Customer and/or End User undertakes, at its own expense and effort, to: (1) ensure suitable safety conditions for technicians appointed by Tema Sinergie S.p.A. during the supply of the Services and, in particular, make certain that the equipment and environments are perfectly clean and totally free of potentially hazardous materials and/or substances; (2) ensure the presence of at least one of its operators during the interventions by the technicians appointed by Tema Sinergie S.p.A.; (3) drafting a prevention plan identifying the risks and prevention measures adopted and to be adopted to ensure the minimum safety and hygiene requirements set out in laws; said plan and the related requirements should be communicated in a timely manner to Tema Sinergie S.p.A. for the planning of the intervention.
8.1 The Seller may, at its discretion, request letters of credit, partial or total advance payments, or other forms of guarantee, including a first demand bank guarantee, as set out in Rule 758 of the International Chamber of Commerce.
9.1 Price lists, quotations, offers and prices are subject, at any time, to changes at the sole discretion of the Seller, except as otherwise established in the Terms and Conditions of Supply referred to in the CO.
9.2 Prices are stated in Euros (€) unless otherwise indicated and are understood, unless otherwise indicated in the Offer, to be net of taxes, carriage or delivery costs, customs duties and/or tariffs (e.g. sales tax, use tax, ad valorem, etc.).
10.1 The Products are delivered FCA – Free Carrier (current Incoterms in force) to the Seller’s premises, unless otherwise stated in the Terms and Conditions of Supply referred to in the CO.
10.2 The delivery time for the Products relate to the date on which the supply is received by the carrier. These terms and conditions take effect from the date of the OC and, where applicable, from the discharge by the Customer of its obligations and expenses, such as submission of the documents, any agreed advance payments or proper preparation of the installation site, as set out in the Seller’s Offer. The Seller will make every reasonable effort to avoid delivery delays. The Customer may not attribute to or request from the Seller compensation for damage resulting from serious delays in delivery of the Products for reasons not directly attributable to the Seller.
10.3 The Products will be delivered to the carrier appointed by the Customer, and in turn delivered by the said carrier to the place indicated by the Customer and shown on the related delivery note. In all events, if the Seller has to bear higher costs or charges relating to non-acceptance of the Supply in a timely manner, the Customer will have to bear any additional cost, direct and/or indirect, incurred by the Seller.
10.4 Force majeure, unforeseeable circumstances and all exceptional occurrences that could affect the normal delivery of the Products, such as strikes and lockouts or other trade union conflicts, lack of energy, measures by state authorities, as well as import and export restrictions, will entitle the Seller to extend the delivery time to a reasonable extent or, if fulfilment of the OC is compromised or made impossible, to withdraw totally or partially from the agreement, without any liability towards the Customer.
10.5 The Seller has the right not to fulfil the OC, if the Customer has become insolvent including in relation to other supplies, or if its financial guarantees have diminished.
10.6 If the shipment is delayed or extended by request of the Customer, the Customer itself shall organise and inform the Seller of the place to which the Products that are the subject of the OC are to be delivered for their deposit and storage, at its own expense. Consequently, all risks (e.g. loss of or damage to the Products) will be borne by the Customer. If the Customer will not promptly organise the deposit or storage, the Seller may make arrangements for this service at the Customer’s expense. Any further cost, to be reported in detail by the Seller, must be reimbursed by direct remittance.
10.7 If delivery of the Products requires a special export licence or authorisation, the Seller will not be liable for any delay in the granting of such licence or authorisation.
11.1 All payments must be made in European currency (Euro, €), unless otherwise specified.
11.2 Payments will be made in accordance with the “Terms and Conditions of Supply” agreed between the Seller and the Customer, as provided in the CO.
11.3 In the event of delayed or non-payment of any amounts for any reason due to the Seller, interest on arrears will become effective from the time of the non-payment, with no need on the Seller’s part for a summons or formal notice and without prejudice to compensation for any greater damage, at the rate set out in Legislative Decree 231/02 as amended (ECB rate + 8%).
11.4 The Seller will have the right to refuse or discontinue supplies in the event of default by the Customer for any amount due to it or if, in its unquestionable judgement, it becomes aware that the Customer’s financial situation is precarious and/or has worsened after the OC and also in the event that, according to the Seller’s discretionary and reasonable assessment, its guarantees have diminished.
11.5 Unless specifically agreed otherwise, the Customer waives the right to offset any claims from the Seller.
11.6 In the event of non-payment by the Customer on the relevant due dates, of even a single part of the consideration for the supplies, the Customer will automatically forfeit the benefit of the time limit for the amounts not yet due and will therefore have to make immediate full payment of its debt in principal, interest and expenses.
11.7 The Seller retains the ownership of the Products until full payment has been made for them, and all risks and dangers are transferred to the Customer at the time of delivery to the carrier, unless otherwise specified.
12.1 The cancellation or discontinuation of the PO by the Customer after the OC will entail a penalty of 75% of the total value of the Order, without prejudice to further documented damage.
12.2 In the event of cancellation, the Customer must provide written notice to the Seller by registered post with advice of delivery or by Certified Electronic Mail (PEC) or other equivalent means.
12.3 Cancellation of the PO will no longer be possible after shipment.
13.1 The Seller reserves the right to make changes and improvements to the design and specifications of its Products without notice or obligation to the Customer.
14.1 The Seller warrants that the Products are of excellent quality, comply with the specifications set out in the Scope of Supply, and are free from faults in the materials and in the manufacture under normal conditions of use and functioning for a period of twelve (12) months, unless otherwise specified, from the date of delivery, or other date indicated in the OC.
14.2 The Seller provides a warranty for the Products supplied by third parties to the extent that the warranty provided by the third parties is transferable to the Customer at no expense to the Supplier.
14.3 If, on receipt of the Products, the Customer ascertains their non-conformity, any claim for apparent and non-apparent flaws and defects in the Products must be made in writing by the Customer within 8 (eight) days of discovery of the flaws and must state their nature.
14.4 The Seller’s warranty is not applicable to defects resulting from: (1) absence on-site of the necessary installation requirements specified in the Scope of Supply (article 2.1); (2) unauthorised installation, accidents, injuries, alterations, abuse of or non-compliance with the Seller’s written instructions; (3) Product specifications provided by the Customer; (4) subjection of the Product to conditions of neglect and negligence; (5) repairs or modifications to the Product carried out without the Seller’s written authorisation. No other express warranty is applicable. The Seller will have no other liability, direct or indirect, of any kind, including liability for special, incidental or consequential damages. If any model or sample has been shown to the Customer, such model or sample is to be considered merely illustrative of the type and general qualities of the Products, and not representative of all the aspects of the model or sample to which the Product should necessarily conform.
14.5 During the warranty period the Seller undertakes to repair all manufacturing defects or to replace any defective or unsuitable components, charging neither for the cost of spare parts nor for transport costs. In all events, the following will not be covered by warranty: (1) damage due to transportation (e.g. scratches, dents and similar); (2) further calibration/adjustments (e.g. electrical and/or radiological) not referred to in the Terms and Conditions of Supply; (3) damage and malfunctions due to and resulting from the insufficiency or inappropriateness of the systems for which the Customer is responsible (e.g. electricity, water, pneumatic system, air conditioning – HVAC, or alterations resulting from environmental, climatic or other conditions); (4) damage and/or breakdowns due to repairs carried out by unauthorised personnel or caused by neglect, negligence, tampering, disassembly, inability to use, improper and incorrect use of the equipment and any use that deviates from or is in conflict with the recommendations provided by the Seller; (5) breakdowns and malfunctions resulting from the incorrect installation of the product, when this is the responsibility of the End User; (6) filters and consumables; (7) adjusting and setting the equipment after testing; (8) consultations regarding the systems, checks for the sake of convenience and any training sessions not specifically agreed upon; (9) normal wear and tear from use of the Product or from use that deviates from and is in conflict with the instructions provided by the Seller.
14.6 The warranty duration will not be extended, nor will the warranty itself be renewed, as a result of repairs or replacements.
14.7 The warranty will no longer be valid and will therefore lose all effectiveness, in the event of tampering or if the Customer/End User has directly carried out or has had parties other than the Seller’s Technical Assistance (or other specialised technicians specifically authorised by the Seller) carry out interventions on the product. The warranty will also lose all effectiveness and will therefore not be valid if the purchaser has used non-original components, accessories, spare parts or consumables kits on the product.
14.8 In all events, the Seller will not be liable for any missed business opportunities, including loss of profits, revenues, or expenses incurred by the Customer.
14.9 The Seller’s warranty is not valid if the Products have been used for functions that are not part of the Scope of Supply. Furthermore, in such cases of non-permitted use, the Customer must hold the seller harmless for all losses, damages or consequences resulting thereof.
15.1 Any supply of goods and/or Services shall be terminated in accordance with the provisions of Article 1456 of the Italian Civil Code and the Seller will be authorised to discontinue the supplies that are the subject of the agreement, with no right to recourse by anyone and with no right, on the part of the Seller to claim compensation or otherwise for any reason, if the Customer: (1) does not pay within the agreed terms and time limits, discontinue, in whole or in part, the payment of any sum due to the Seller in relation to the supplies made to it; (2) refuses to collect the supplied goods; (3) discloses to third parties information relating to commercial relations with the Seller, unless specifically authorised by the Seller; (4) or a branch or subsidiary of the Seller is subject to any proceedings in insolvency, bankruptcy, liquidation or winding up (5) its own financial guarantees in place to safeguard its credit obligations to the Seller are diminished, according to the discretionary and reasonable evaluation of the Seller; (6) has become untraceable; (7) refuses, if requested, to provide additional guarantees to the Seller, in accordance with article 8.1 above.
15.2 In the event of termination of the supply agreement, in addition to the obligation to pay the Seller the full amount due, the Customer will still be liable for full compensation for any damages suffered by the Seller as a result of the Customer’s breach of contract.
15.3 In all events, it remains the Seller’s right to request fulfilment.
16.1 The Seller warrants that, at the time of the OC, it was not aware of any infringement of intellectual property rights claimed by third parties relating to the design, patents, trademarks, copyright or software of the Products.
16.2 If the Seller is notified in writing of any claim for violations of the regulations that are the subject of this paragraph, the Seller will be liable for resolving such disputes at its own expense, whether in or out of court, provided the Customer cooperates with the Seller.
16.3 The above provisions will not apply if the Product that is the subject of or part of the complaint has been supplied using components specifically indicated by the Customer or made according to technical specifications provided by the Customer. Regarding these Products, the Seller will not be liable in any way for infringements of designs, patents, trademarks, copyright or software. The Seller will compensate the Seller and will hold the latter harmless from any claims, liability, damages or expenses, including legal fees, resulting from such disputes.
16.4 The Customer will not disassemble or reverse engineer the Products and the internal software delivered with the Products.
16.5 The Seller exercises its exclusive rights with regard to the Products and its intellectual property rights, including copyrights, trademarks, patents, trade secrets and industrial know-how, as well as on any changes introduced as a result of the Customer’s PO.
17.1 Any technical information (e.g. technical specifications, assembly drawings, hydraulic & instrument diagrams, installation layouts and any other document provided with the Offer and/or as part of the Products or Services that are the subject of a PO) provided by the Seller to the Customer in relation to the Seller’s Services shall not be disclosed to third parties, except by prior written agreement with the Seller.
17.2 Any information, suggestion or idea given to the Seller by the Customer in relation to the Seller’s Services will not be considered secret or provided in confidence, unless expressly stated in writing and signed for acceptance by the Seller.
18.1 The invalidity of any provision of these “General Terms and Conditions of Sale”, or the CO, will not affect the validity of any other provision contained therein.
19.1 If the Seller fails to exercise any rights resulting from the contractual relationship, this circumstance will not constitute a waiver, whether express or tacit, and the Seller will not be precluded from exercising any other rights.
20.1 Any notification or request for the purposes of these “General Terms and Conditions of Sale” must be sent in writing by registered post with advice of delivery or by Certified Electronic Mail (PEC) or other equivalent means.
21.1 In accordance with Legislative Decree no. 51/ and the EU Regulation 2016(680 GDPR as amended the Customer authorises the Seller to use and process its personal data and hereby declares that it is aware and has been informed of the purposes and methods of processing, the optional nature of their assignment and that it may legitimately oppose their processing by the Seller. The Customer also declares that, in accordance with the aforementioned GDPR, as amended, it has been informed of its rights as set out in the aforementioned legislation and the procedures for their exercise.
21.2 The Customer gives the Seller the right to disclose its personal data to its subsidiaries and affiliates same for statistical, commercial, marketing, credit protection, credit management and transfer purposes, through consultation, processing, comparison, interconnection and disclosure of the same for credit protection purposes and always within and limited to the purposes and provisions set out in this agreement.
21.3 In the course of the relationship with its customers, the Seller may process personal data concerning the Customer, its employees, agents or suppliers, in order to facilitate the fulfilment of the Customer’s Purchase Orders or to carry out other activities with the Customer (satisfaction surveys, market surveys, etc.), and to ensure the Customer is informed by the Seller or by third parties of offers, Products, and Services or receives other useful information.
22.1 The Customer declares that it accepts the transfer of credit owed to the Seller.
23. Applicable law – Jurisdiction
23.1 These “General Terms and Conditions of Sale” are subject to Italian Law.
23.2 The Seller and the Customer accept that all disputes arising from the supply relationship governed by these “General Terms and Conditions of Sale”, or in any way related to them and which cannot be settled amicably, will be subject to the exclusive jurisdiction and competence of the Law Court of Ravenna, or, if the Customer is a legal person under public law, of an Administrative Court with jurisdiction in the place where the Agreement is to be performed, to the express, agreed exclusion of all other courts.