Annex A
1.1 MCQ S.r.l. ("MCQ" or "Seller") will provide the client (the "Purchaser") with the products (the "Products") listed in the purchase order (the "Purchase Order"), according with and subject to the terms and conditions of this Agreement (the "Agreement"). The Agreement includes the Purchase Order and the present general terms and conditions attached thereto (the "Terms & Conditions").
2.1 Any cancellation of or amendment to any Purchase Order, refusal to take delivery or return to any conforming Product purchased hereunder shall be made in writing, countersigned by MCQ and subject to a cancellation fee in accordance with MCQ's policy in effect at the time.
2.2 For the purpose of this Agreement, notices shall be deemed properly given if sent by facsimile, registered mail with return receipt, overnight courier and hand-delivery.
3.1 The Products are sold to the Purchaser on the basis of the indications included in the Purchase Order. Unless otherwise agreed in writing, in order to promote their safe and effective use, all Products are provided solely for use or consumption by the Purchaser and the Purchaser shall hold harmless and indemnify the Seller against any claim from third parties related to the resale, transfer or use of any such Products.
3.2 The Purchaser acknowledges that the Products fit with the specific scope for which the Purchaser intends to use the Products, accepting any and all risks.
4.1 This Agreement shall be valid and in full force for the period indicated in the Purchase Order.
5.1 The Purchaser shall pay to MCQ the amounts specified in the Purchase Order (the &qot;Amount&qot;), according to the payment terms indicated thereto. The Purchaser shall not be entitled to make any deduction from payments due to MCQ on account of any alleged set-off or counter claims.
5.2 Unless otherwise agreed in writing, all prices are EXW.
5.3 In case of late payment of the Amount or of any amount due by the Purchaser to MCQ pursuant to this Agreement, the Purchaser (i) shall pay to MCQ statutory interests for late payments on commercial transactions as provided by the law or, if not applicable, legal interests (interesse legale), each increased by 2.5% and accrued on the amounts due and unpaid, and (ii) shall refund MCQ with all costs and expenses incurred by the latter in connection with recovery of the amounts due (including legal expenses).
5.4 Without prejudice to any of Article 6 and Article 7, MCQ is entitled to not deliver the Products in the event the payment of the Amount is not received by MCQ within 30 (thirty) days of the Expiration Date indicated in the Purchase Order.
6.1 Any delivery dates set out in the Seller's order confirmation or acceptance are estimates. The Seller cannot guarantee delivery on a specific date. Delivery may be made in installments and may be extended as long as the Purchaser is delayed in the performance of any obligation to the Seller. The Seller shall not in any circumstance be liable for any loss or damage whatsoever due to delay in delivery (including pursuant to installments) however occasioned unless the same was attributable to the Seller's gross negligence or willful misconduct. If the Purchaser refuses to accept delivery of Products or any installment thereof, the Seller may, without prejudice to its other rights, arrange for the storage of the Products at the expense and risk of the Purchaser. All title and risk of loss or damage passes to the Purchaser at the time the Products are first made available to the Purchaser for shipment. The Seller shall retain title to the Products delivered to the Purchaser until the Purchaser has performed all its obligations under any sale agreement with the Seller. In the event of any re-sale by the Purchaser of any goods manufactured out of the Products sold by the Seller, the Purchaser assigns to the Seller all proceeds from their sale.
7.1 Without prejudice to any termination right provided by the law or this Agreement, according to Article 1456 of the Italian Civil Code, subject to a prior communication by registered mail from MCQ, this Agreement shall be deemed terminated (i) after 45 (forty-five) days from the Expiration Date indicated in the Purchase Order, or (ii) in case of breach by the Purchaser of any of his obligations under Articles 12, 13, 14, and 15.
7.2 Without prejudice to Articles 5.2, 5.4 and 7.1, in any case of termination of this Agreement by MCQ according to any of the provisions of this Agreement or by the law, MCQ shall be entitled to receive from the Purchaser, and the Purchaser shall pay MCQ, a lump sum equal to the unpaid part of any Amount due in connection with this Agreement by way of liquidated damages, without prejudice to any additional damages to MCQ.
7.3 If Purchaser does not fulfill its obligations, does not fulfill them timely or adequately, is declared bankrupt, requests (temporary) moratorium or proceeds with the liquidation of its business, as well as when its assets are attached in whole or in part, the Seller has the right to suspend the performance of any obligation hereunder or to rescind the agreement in whole or in part, without prior notice or default, by written declaration, at its option and always reserving any rights to which it is entitled with respect to compensation for costs, damage and interest. In these cases, all of the Seller's claims against the Purchaser are immediately and totally due. The Purchaser authorized to rescind the agreement only in the events referred to in these terms and conditions, and then only after payment to the Seller of all amounts owed to the Seller at that time, whether due or not.
8.1 Without prejudice to Articles 5.2, 5.4 and 6, in the event the Purchaser does not fulfill his obligations under this Agreement for any cause or reason, MCQ is entitled to set by registered mail a final term for the Purchaser to remedy to the breach of the Agreement. Such final term shall be set not earlier than 20 (twenty) business days after the date on which the Purchaser receives the communication from MCQ.
8.2 In the event the breach of the Agreement is not remedied by the Purchaser within the final term set forth according to Article 8.1, this Agreement shall be deemed terminated and the Purchaser shall pay MCQ any Amount due as of the termination date as well as any additional amounts due by the Purchaser pursuant to this Agreement including those indicated in Article 7.2.
By using this Site, you signify your acceptance of this policy and terms of service. If you do not agree to this policy, please do not use our Site. Your continued use of the Site following the posting of changes to this policy will be deemed your acceptance of those changes.
9.1 MCQ ensures that the Products are free from material and/or production defects occurring during normal use of them (the "Defects").
9.2 Should any alleged Defect occurs within the Term (as defined below) and the Purchaser submits the Notice (as defined below) according with Art. 12, MCQ has the right, at its sole discretion, to either replace or repair the Product, after the performance of a technical assessment of the actual existence of the Defect (the "Warranty").
9.3 If MCQ decides for replacing the product, MCQ has the right, at its sole discretion, to deliver to the Purchaser either a new product or a functionally equivalent product.
9.4 If MCQ chooses the replacement option, the Product shall be promptly returned to MCQ.
9.5 Any tampering of the warranty seal on the Products will forfeit the Warranty.
10.1 The Warranty shall remain valid for a period of 13 (thirteen) months from the date of purchase (the "Term").
10.2 In order to ascertain if the Product is covered by the Warranty, the Purchaser shall submit to MCQ the invoice which was originally released at the time of sale that includes the date of purchase, the model and serial number of the Product for which an assistance covered by the warranty is requested.
11.1 The Purchaser acknowledges that MCQ shall not guarantee for:
a. uninterrupted or error-free operation of any of the Products.
b. uninterrupted or error-free operation of any of the Products.
11.2 The Purchaser agrees that:
c. the Product's repair and/or replacement, as provided under the Warranty, do not involve any extension or renewal of the Term of the Warranty;
d. both the Product's repair and replacement, performed under coverage of the Warranty, can also be realized using parts or units not identical but functionally equivalent to that of the Product subject to repair or replacement;
e. the Warranty shall not be extended to cases other than the Defects;
f. the Warranty shall not apply and it is expressly excluded, where the alleged Damages, result from damage, misuse, tampering, negligence, alterations or repairs of the Products which have been performed by unauthorized persons;
g. the Warranty shall not apply and, therefore, it is expressly excluded, in case of inspections, maintenance, repair and replacement of parts of the Products resulting from natural wear and tear.
In particular, but not limited to, the Purchaser agrees that the Warranty shall not be recognized in case of any defect or damage caused to and/or arising from:
h. using any of the Products under conditions other than usual;
i. using any of the Products under environmental conditions other than those listed in the user manual;
misuse and/or improper and/or unauthorized use of any of the Products other than that provided in the user manual;
j. performing, in general, any alteration and/or change to any of the Products;
k. Maintenance execution carried out by parties other than MCQ for any Product;
execution of controls carried out by entities other than MCQ and/or any improper operation involving any Product;
l. performing an improper and/or inadequate calibration, and not executed and/or authorized by MCQ;
m. performing an improper and/or inadequate calibration, and/or executed with gasses other than those specified in the user manual;
n. performing an improper or inadequate removal and/or intervention on any of the Products, and not executed and/or authorized by MCQ;
o. repairing and/or opening of any of the Products to be performed by people not authorized by MCQ;
p. abuse or misuse, including but not limited to, the inability to use any of the Products for common purposes or in accordance with provisions listed in the instructions for use and maintenance provided by MCQ;
q. using any of the Products together with accessories not approved by MCQ as suitable and/or compatible with it;
r. Using not dry gases;
s. Corrosion, Oxidation or any chemical modification process.
t. malfunctioning of any of the Products arising from incorrect installation or use not in line with technical or safety standards currently in force, or made in violation of instructions contained in the user manual;
u. force majeure events such as, for example, natural disasters and/or any other extreme weather conditions and/or external causes, which are beyond MCQ's control, even if caused by lightning, water, fire, terrorist activity, riots, improper ventilation, acts of any governmental authority, site or building blockades, transport or work interruptions or work slowdowns and lock out, machine breakdown, accidents and interruptions of business operations or any delay in the provision to MCQ of parts, goods or services ordered to third parties;
v. moisture, liquid and any infiltration including those of beverages and/or food;
w. normal and/or natural wear and tear;
x. shipment of any of the Products for whatever reason and purpose.
11.3 The Purchaser expressly agrees and acknowledges that the Warranty constitutes the sole and exclusive legal warranty provided and recognized by MCQ and it replaces and excludes any other expressed and/or implied, oral and/or written, legal warranty. In particular, without prejudice to any limit provided by applicable law to sales of the Product and by specific legislation protecting consumers, it is understood that, among others, it is considered unrecognized and excluded, either for implicit or explicit defects, any warranty on marketability, satisfactory quality, suitability for use and specific purposes.
11.4 The accuracy of the measurement/mixing of the Product indicated by MCQ refers to the time of sale of the Product and for a period of three months from the delivery, provided that the Product is used correctly. The accuracy of the product measurement is closely linked to its proper use and the timely execution of the ordinary maintenance activities recommended by MCQ, and may be subject to change depending on how the Product is utilized by the Purchaser. MCQ shall not be held liable for any direct or indirect damages incurred by the Purchaser that are in any way related to a decrease in the accuracy of measurement/mixing resulting from the failure to carry out ordinary maintenance according to the methods and timelines established by MCQ, or from improper and/or inadequate use of the Product itself
11.5 Except for fraud or gross negligence of MCQ, in no event, MCQ shall be held liable for any damage (either direct or indirect), cost, expense, harm, loss or liability of any kind (the "Loss") suffered by and/or arising from and/or related to any defect in any of the Products, even if under warranty solved, as well as for any breach of warranty and/or any other agreement and/or arrangement and/or obligation, even if recognized and/or recognizable by law. Such Loss include, among others, damages resulting from loss of annual turnover, loss of anticipated or immediate revenue (including loss of profits arising out of contract), loss of liquidity, loss of savings, loss of business, loss of opportunity, loss of goodwill, damage to the image, loss and/or damage and/or alteration of data, any other damages even indirect and/or consequential and/or otherwise related, including equipment replacement costs and property in general, costs of recovery and/or programming and/or reproducing any program or data stored.
11.6 Should MCQ be held liable for any payment of any amount for any reason to the Purchaser in relation to or in connection with the Purchaser, MCQ's liability shall not exceed a sum equal to the purchase price paid by a Purchaser.
11.7 MCQ expressly disclaims (i) any damages caused by MCQ's employees, consultants, contractors or any third parties in providing the Products; and (ii) any and all legal warranties to the maximum extent permitted by the applicable law.
12.1 In order to request the Warranty, the Purchaser is required to promptly send an intervention application by e-mail at support@mcqinst.com, enclosing the form attached to this document as Annex 1, completed in its entirety (the "Notice").
12.2 Subject to the provisions of Article 12.1, MCQ, after the performance of a technical assessment of the alleged Defect, MCQ will evaluate at its own discretion and assessment, in the time and manners deemed appropriate, a possible return of the Product.
12.3 If a return of the Product is deemed appropriate and necessary, the Purchaser shall receive by MCQ the Return Materials Authorization form (the "RMA"), attached to this document as Annex 2.
12.4 The Purchaser shall promptly complete the RMA and return it to MCQ.
12.5 After the execution of the activities provided under 12.1, 12.2, 12.3 and 12.4, the Purchaser shall be required to return the Product by using the same carrier who performed the initial delivery of the Product, anticipating all costs, taking care to prepare all the necessary customs documentation required by the legislation of the sending nation and fulfilling any other incumbent may be required to perform the shipment.
12.6 After the receipt of the Product, on time and in the manner deemed most appropriate for the specific case, MCQ shall perform and verify the existence of the alleged Defect and shall investigate the possible causes that produced it.
12.7 Once checks referred to in Article 12.2 have been completed and the validity of the Warranty coverage have been ascertained, MCQ shall:
a. repair and/or replace and/or renovate the Product, selecting, at its sole discretion, the solution deemed most appropriate;
b. return the Product to the Purchaser, being understood that the cost of shipping shall be borne by the Purchaser;
c. reimburse to the Purchaser any shipment cost sustained in advance for the return of the Product;
12.8 In the event checks referred to in Article 12.2 have not ascertain the validity of the Warranty coverage, MCQ shall:
a. formulate a repair estimate including an indication of a possible delivery date;
b. communicate the estimate to the Purchaser.
The Purchaser, within the period of validity of the estimate, shall reply sending an e-mail at support@mcqinst.com, expressly declaring its approval of the estimate received or, alternatively, submitting a request to having the Product returned without the performance of any intervention on it.
Either in case of acceptance of the estimate or request for a product return, the shipping costs shall be borne by the Purchaser. In case the Purchaser does not respond to the repair estimate within 6 (six) months from the receipt of the estimate, the Product shall be retained by MCQ.
13.1 The Purchaser shall indemnify, defend and hold the MCQ harmless from and against all damages or losses caused by third parties, and from all claims brought by anyone for any reason against MCQ, arising from or in connection with any information or data provided by the Purchaser to MCQ or any breach of the obligations provided in this Agreement by the Purchaser or in case of resale, transfer or improper use of any Product.
14.1 The Purchaser acknowledges that nothing contained in this Agreement shall be construed as conferring to the Purchaser any license or right to enjoy, use or retain any intellectual and industrial property rights of any kind, including without limitation, trademarks, service marks, trade secrets or company reserved information, graphics and samples, copyrights, inventions, formulas, rights on hardware technologies, software, telecommunications and database, relating to or in connection with the Products, MCQ or the technological platform, being any such rights owned by MCQ.
15.1 The Purchaser shall not communicate or make available to third parties any information, data and/or content obtained from MCQ and shall not make or retain any copy of the same without the MCQ's prior written authorization.
15.2 Upon reasonable request of MCQ, the Purchaser undertakes to destroy permanently or, at the MCQ's discretion, to return to MCQ any and all information, data and/or content obtained from MCQ within 3 (tree) days of the MCQ's request.
16.1 MCQ may offer Products for sale using the internet, e-mail or other electronic communications methods. All sales of Products made using any such method will be governed by the terms of the governing sales agreement, and by any additional terms set out or referenced in MCQ's internet site or electronic communications. In the event of any conflict between the governing sales agreement or such additional terms and these Terms & Conditions, the governing sales agreement or such additional terms shall prevail. Any information provided by MCQ via any internet site or electronic communication (i) is subject to correction or change without notice, and (ii) is provided for the sole use of the Purchaser for purposes of facilitating individual transactions involving the purchase and sale of the Products. The Purchaser agrees that it shall not rely upon any such information for any purpose other than making individual purchases and shall not seek to assert such information against MCQ for any other purpose. The Purchaser specifically agrees that MCQ may issue electronic order acceptances or confirmations and electronic invoices for any purchases of the Products made using the internet, e-mail or any other electronic communications method, and agrees to honor such order acceptances or confirmations and invoices as if they had been delivered in writing.
17.1 MCQ is entitled to assign this Agreement to any subsidiary, parent company, related company or any other company in which it holds an interest without any further consent from the Purchaser which consent to such assignment is deemed to be obtained herewith.
17.2 The Purchaser is not entitled to assign to third parties this Agreement or any rights and/or obligations in connection thereto without the MCQ's prior written authorization.
17.3 Cancellation or changes to any order, refusal to take delivery or return of any conforming Product purchase hereunder, will be subject to acceptance by Seller and to a cancellation fee in accordance with Seller's policy then in effect. Neither course of performance or dealing, nor usage or trade, nor prior writings or agreements shall be used to qualify, explain or supplement any of these terms and conditions. Failure by either party, at any time or from time to time, to require the performance by the other of any term or provision hereof shall not constitute a waiver of such term of provision. The invalidity, in whole or in part, of any provision herein, shall not affect any other provision herein, each of which shall be enforced to the full extent permitted by law.
18.1 This Agreement shall be governed by and construed in accordance with the Italian law.
18.2 Any dispute arising out of or relating to this Agreement shall be deferred to the exclusive jurisdiction of the Rome Court.
MCQ Instruments, effective date 30 September 2024.