Terms & Conditions

1. Offer, confirmation or agreement

These terms and conditions of commercial sale of Toptek S.r.l. (the “Terms and Conditions”) apply to and form an integral part of all quotations and offers made by Toptek S.r.l. (“Toptek”), all acceptances, acknowledgements and confirmations by Toptek of any orders by Buyer and any agreements (“Agreement(s)”) regarding the sale by Toptek and purchase by Buyer of goods and services (“Products”), unless and to the extent Toptek explicitly agrees otherwise in writing.

Any terms and conditions set forth on any document or documents issued by Buyer either before or after issuance of any document by Toptek setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Toptek, and any such terms shall be wholly inapplicable to any sale made by Toptek to Buyer and shall not be binding in any way on Toptek.

Toptek’ offers are open for acceptance within the period stated by Toptek in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Toptek at any time prior to the receipt by Toptek of Buyer’s acceptance thereof.

2. Pricing

Prices in any offer, confirmation or Agreement are in Euros, based on delivery Ex-Works (INCOTERMS latest version) Toptek’ manufacturing facility or other facility designated by Toptek, unless agreed otherwise in writing between Buyer and Toptek and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products or any other expenses. Toptek will add taxes, duties and similar levies to the sales price where Toptek is required or enabled by law to pay or collect them and these will be paid by Buyer together with the price.

3. Payment

(a) Unless agreed otherwise between Toptek and Buyer in writing, Toptek may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable INCOTERM. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Toptek and Buyer in writing. All payments shall be made to the designated Toptek address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Toptek. In addition to any other rights and remedies Toptek may have under applicable law, interest will accrue on all late payments, as per section 5 of the Legislative Decree 231/2002, at a rate equal to the official ECB rate plus 7% or to the extent permitted by applicable law, from the due date until payment in full.

(b) All deliveries of Products agreed to by Toptek shall at all times be subject to credit approval of Toptek. If, in Toptek’ judgment, Buyer’s financial condition at any time does not justify production or delivery of Products on the above payment terms, Toptek may require full or partial payment in advance or other payment terms as a condition to delivery, and Toptek may suspend, delay or cancel any credit, delivery or any other performance by Toptek.

(c) In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Toptek shall have the right to refuse performance and/or delivery of any Products until payments are brought current and Toptek may suspend, delay or cancel any credit, delivery or any other performance by Toptek. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.

4. Delivery and quantities

(a) Products shall be delivered Ex-Works (INCOTERMS latest version) as designated by Toptek, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by Toptek are approximate only, and Toptek shall not be liable for, nor shall Toptek be in breach of its obligations to Buyer, for any delivery made within a reasonable time before or after the communicated delivery date. Toptek agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the such delivery date.

(b) Buyer will give Toptek written notice of failure to deliver and thirty (30) days within which to cure. If Toptek does not deliver within such thirty (30) day period, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the related Agreement.

(d) If Buyer fails to take delivery of Products ordered, then Toptek may deliver the Products in consignment at Buyer’s cost.

(e) In the event Toptek’ production is curtailed for any reason, Toptek shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in the Agreement, as the case may be, without being responsible or liable to Buyer for any damage resulting therefrom.

5. Force majeure

Toptek shall not be liable for any failure or delay in performance if:

(i) such failure or delay results from interruptions in the Product manufacturing process; or

(ii) such failure or delay is caused by Force Majeure as defined below and/or by law.

In case of such a failure as set forth above, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues, without Toptek being responsible or liable to Buyer for any damage resulting therefrom.

The expression "Force Majeure" shall mean and include any circumstances or occurrences beyond Toptek' reasonable control -

whether or not foreseeable at the time of the Agreement - as a result of which Toptek cannot reasonably be required to execute its obligations including force majeure and/or default by one of Toptek’ suppliers. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Toptek to extend for a period of three (3) consecutive months), Toptek shall be entitled to cancel all or any part of the Agreement without any liability towards Buyer.

6. Rights in software, documentation and intellectual property

Subject to the provisions set forth herein, the sale by Toptek of any goods implies the non-exclusive and non-transferable limited license to Buyer under any of Toptek’ and/or its affiliates’ intellectual property rights (“Toptek’ IPR”) used in the goods to use and resell the goods as sold by Toptek to Buyer. To the extent that software and/or documentation is embedded in or delivered with any goods sold by Toptek to Buyer, the sale of such goods shall not constitute the transfer of ownership rights or title in such software and/or documentation to Buyer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and non-transferable license to Buyer under Toptek IPR used in the software to use such software and/or documentation in conjunction with and as embedded in or delivered with the goods as supplied by Toptek to Buyer.

Notwithstanding anything to the contrary herein, these Terms and Conditions shall not be construed as conferring any right, license or immunity, either directly or by implication, estoppel or otherwise to Buyer or any third party under any Toptek IPR or intellectual property rights of any third party other than explicitly granted under these Terms and Conditions.

Buyer shall not: (a) modify, adapt, alter, translate, or create derivative works from any software residing in or provided by Toptek in conjunction with any goods; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software; (c) merge or incorporate such software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Toptek except as explicitly allowed under applicable law. Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Toptek and/or its affiliates or its third party suppliers in any software or documentation provided by Toptek. If and to the extent copyright in the software is owned by third parties, the license terms of these third parties shall apply instead of the present Terms and Conditions to such third party software.