Article 1 – Definitions
The following terms are used with the following meanings:
- Services: the services provided by PQS regulated by these General Conditions.
- PQS: Port Quarantine Service s.r.l with registered office in Genoa, via Roma 9, P. IVA 02608220998, the company providing the Services.
- Customer: the legal person using the PQS services.
- General Terms and Conditions: the general conditions of membership in the Services indicated herein
- Parties: PQS and the Customer collectively considered; each Party is independent and retains its autonomy in carrying out the activities of its competence and responsibility.
- Conclusion Date: The date on which consent is formed between the Parties and the Contract is deemed to be concluded.
- Intellectual Property Rights: all intellectual and industrial property rights, including, without limitation, patents for invention, utility models, designs, product or service marks, trade names and marks, software, databases and copyright, whether or not these rights are
registered, and formulas, manufacturing processes, technologies, industrial secrets, trade secrets, know-how and any other right or form of protection having a similar nature or equivalent effect.
Article 2 – Subject matter – Conclusion and effectiveness of the Contract – Access to the Services
2.1 Object of the Contract is the provision by PQS of the Services requested by the Customer in compliance with these General Conditions; The Customer is not entitled to transfer the Contract to third parties or the resulting rights and obligations without PQS’ written permission.
2.2 The Customer who intends to use the Services must accept these General Conditions.
2.3 For the provision of the Services, the Customer follows the instructions for membership
indicated on the Portal WEB or communicated by e-mail and subscribe to these General Conditions.
2.4 The Customer may access the Services through the WEB Portal or via e-mail.
2.5 The information required for accessing the Services is processed in absolute accordance with as required by the European Regulation 679/16 (GDPR).
2.6 PQS offers, in whatever form, are not binding until the Contract is stipulated and may be revoked by PQS; offers do not apply to future assignments.
2.7 If the PQS Offer specifies the period of validity and/or other specific conditions, the Customer, if he intends to entrust the Services listed in the Offer, must sign the Contract within the
indicated period, to be considered essential, and under the conditions laid down.
2.8 If further agreements are necessary for the effectiveness and performance of the Contract, approvals, acceptances, consents or similar actions, the Parties undertake to take action
quickly, with fairness and good faith, to safeguard the preservation of the Contract.
2.9 No modification of the Contract can be considered effective and binding for the Parties unless resulting from a written document signed by both Parties by a person with of the powers necessary to engage the person in whose name and in whose interest will be signed in any amending and/or additional and/or supplementary agreements.
2.9.1 Requests for amendments and/or additions to the Contract must be made in writing.
2.9.2 The possible nullity of single clauses contained in the Contract does not prejudice the effectiveness of the other provisions and, therefore, in the event that one or more provisions of the Contract should be declared invalid for any reason, the other provisions will remain fully in force and the Parties commit themselves from now on in the best spirit of good faith, to execute the provisions remained in force and to agree and to perform methods that replace in a valid form, to achieve the purposes of the Contract means the provision or provisions declared void or invalid.
2.9.3 The possible tolerance of one of the Parties to the conduct of the other constituent violations of the Contract shall not constitute a waiver of the rights deriving from the violated provisions, nor right to demand the proper performance of all terms and conditions contained in the Contract.
2.9.4 The Contract is managed according to the parameters of art. 1375 c.c. The Parts are therefore engaged to examine the problems which have arisen in order to identify improvements and to allow each other sufficient time to remedy the problem.
2.9.5.The Contract, in double original, binds the Parties from the date of its subscription, is translated also in English but relevant and binding is the Italian text.
Article 3 – Performance of the Contract
3.1 PQS fulfils its obligations with due diligence and in accordance with the legal, administrative, regulatory or supervisory provisions applicable to the Services.
3.2 PQS provides the Services with its organization and/or its auxiliaries and establishes the Execution of the Services operating in the best interest of the Customer.
3.3 Before the execution of the Services the container must be checked and viewed by the technicians of PQS to verify its suitability for treatment in accordance with the provisions of the Authorities.
3.4 Validation of successful treatment is the responsibility of the fumigator technicians.
3.5 The Certificate of Treatment is issued only at the end of the treatments concluded successfully.
3.6 In no case shall the loss of embarkation be due to:
– delay in delivery by the customer of the container to be treated
– load not suitable for treatment
– unsuccessful treatment
is entitled to request any charges to PQS for more stops, denied boarding, demurrage, Detention, etc.
3.7 The goods stored in the containers to be treated are not, for any reason, moved and/or handled by operators and, therefore, no damage to the cargo can be traced back to the execution of the Services.
3.8 In case, in order to carry out the treatment, it is necessary the movement and/or handling of the goods, the Customer must expressly authorize it in writing and bear the risks and costs.
3.9 In the event of a delay in the execution of the Services, for reasons not attributable to PQS, the timing of execution can be prolonged and the Customer, therefore, is obliged to release and hold PQS free from any damage and/or claims for damages, including third parties, including the application of any penalties.
3.9.1 PQS may take any action to improve the provision of the Services by modifying, updating, replacing the technology used to run the Services.
3.9.2 PQS may make any necessary changes to the Contract, also in the of course execution, to adapt it to any needs and/or requests of the Authorities, also in order to allow PQS at all times the perfect fulfillment of its obligations, even if they are different from the date of conclusion of the Contract.
Article 4 – Customer’s obligations
4.1 The Customer undertakes, in order to allow the exact and punctual provision of the Services by PQS, to:
a) to fulfil the obligation to pay the fees pursuant to Article 8;
b) put in place all the obligations, estimates and necessary for the conclusion of the Contract, according to the requests and technical specifications of PQS;
c) ensure that PQS is provided with complete and accurate information and data;
d) follow the instructions provided by PQS;
e) ensure that PQS performs the Services safely and without interference;
f) promptly inform the PQS Service Desk in writing of the facts and circumstances that are impeding the correct response, timely and secure execution of the Services;
e) to notify PQS in writing of any changes to its identification data, such as data relating to the company name, registered office and/or other registered office and its legal representatives;
f) to update the recorded data in a timely manner so that they are constantly in force, complete and true.
4.2 If PQS performs the Services on a site chosen by the Customer, the following provisions apply:
a) the Customer must free the site promptly to allow free and secure access personnel of PQS and/or third parties appointed by PQS, including for the purposes of assembly and installation of the tools and appliances necessary for the treatment;
b) the Customer must have permissions, approvals, permits, licenses and concessions necessary for PQS to perform the Services on the identified site;
c) the Customer must ensure that PQS has all the tools at its disposal free of charge useful and necessary for the performance of the Services, unless otherwise agreed;
d) the Customer must ensure, in accordance with PQS’ instructions, the presence of necessary connections (electricity, water, drains, etc.);
e) the Customer is responsible for the security of the chosen site;
f) the Customer is constituted custodian of the goods of PQS used for the execution of the Services;
g) PQS may inspect the site at any time.
4.3 The Customer assumes all possible burden and liability arising, employees, connected, consequential to the incorrect fulfilment of the obligations incumbent on it; where failure to fulfil obligations gives rise, directly or indirectly, to PQS and/or the awarding of penalties or reductions in revenue of any kind to PQS itself and therefore undertakes to hold PQS from any damage and/or claims, including third parties, including the application of possible penalties, which in any way, may arise from his work.
4.4 PQS is entitled to suspend the performance of the Contract if the Customer fails to comply its obligations under the Contract; the Customer must prepare all remedies for the mitigation of the negative consequences and for the resumption of the execution of the Services; the
suspension does not affect other obligations, including the payment to PQS of agreed fees and any extra costs incurred and/or to be borne.
Article 5 – Security
5.1 As soon as a Party becomes aware of a gap or a potential gap in the reason for which the goods or premises where the Services are performed do not satisfy (anymore) the safety requirements, that Party shall immediately notify the other Party. The Party shall report the type of gap and (if reasonably known) any risks/consequences for humans, animals and/or the environment and all other information that may be relevant to remedy and comply with legal requirements.
5.2 If, in the opinion of PQS, additional information on potential risks is required and/or on the measures to be taken, the Customer must provide all the information at his disposal or that he reasonably has at his disposal.
5.3 Where PQS deems it necessary, the transfer of information takes place during a special meeting, sealed by specific minutes of inspection, with which expressly accepted, by subscription, the risk plan and measures of prevention and emergency to be adopted; the plan and the minutes will form part of the Contract and will have the value of contractual amendment.
5.4 PQS acknowledges the Customer’s right to verify the technical-professional suitability of PQS itself, including with regard to the implementation of risk prevention and protection measures accidents on the activity of the Services and undertakes to remove the persons assigned to the Services that may violate accident prevention regulations or conduct injurious safety conduct.
Article 6 – INTELLECTUAL PROPERTY
6.1. The Customer expressly acknowledges that all intellectual and industrial property rights protected on the basis of the rules relating to copyright and/or the Code of Ownership industrial and/ or other legal provisions, to protect, by way of example and not comprehensive knowledge, patents, trade secrets, formulas, algorithms, models, databases and similar, related to the Services, made available by PQS, remain in the exclusive ownership of PQS.
6.2 The Customer shall also indemnify PQS for all costs, claims, requests, expenses and liability of any nature incurred as a result of the violation of any right intellectual property created by the Customer with regard to the information, goods and services used in the performance of the Contract.
Article 7 – Force Majeure
7.1 PQS is not responsible for delays or failures in the execution of the Services, where have occurred because of the impossibility of the service or because of events of force majeure or chance (“Force Majeure events”).
7.2 For the purposes of this Article, Force Majeure Events are all events at outside reasonable control or, in any case, not foreseeable, dependent on natural facts or third parties, which limit or impede the fulfilment of the obligations set out in the Contract. By way of example and not exhaustive, Force Majeure events shall be considered:
(a) wars, declared or not, revolutions, riots, epidemics, invasions, armed conflicts, acts of terrorism;
(b) national or business strikes or site occupations in relation to national or company category protests;
(c) judicial measures, activities and/or decisions of the Public Administration, legal limitations, as well as acts and orders of the Military Authority having a direct impact on the Contracting Party and not resulting from cause attributable to the Contracting Party;
(d) explosions, fires, lightning, floods, natural disasters, earthquakes or similar events;
(e) hidden defects in machinery and equipment;
(f) failure by the Customer to make the changes recommended by PQS or failure by the Customer to adopt accurate procedures in the verification of data before the performance of the Services or actions of third parties outside the reasonable control of the Parties;
(g) failure of the network or service delivery facilities, failure or inefficiency of network operators, as well as lack of raw materials, energy or transport. In such cases, the failure to perform will not constitute default, suspension of payments or termination;
Article 8 – Fees, invoicing and payment
8.1 The agreed fees are:
a. in euro and do not include VAT and any other government taxes;
b. do not include travel, subsistence and other expenses, including those charged by third
parties to PQS in the performance of the Services.
8.2 The Customer must pay PQS invoices by the deadline indicated in the invoices.
8.3 In the event of late payment, PQS applies default interest ex D. Lgs. n. 231/2002 and ss amendments.
8.4 The agreed fees are defined at the conclusion of a weighted negotiation aimed at ensuring compliance with the standards of efficiency and effectiveness of the Services, qualifying elements of the Contract.
8.5 Management costs and the particularity of the activities performed, and the costs generated by them, make it essential a continuous monitoring in order to make any and necessary corrective to conform with the changing sceneries of the market, legislation, regulatory.
8.6 Any disputes and/or actions, including legal proceedings, relating to benefits provided by PQS pursuant to the Contract, do not give title to the Customer to suspend the payments of amounts due by it or accruing in the course of the dispute.
8.7 The Customer may not, without the consent of PQS, offset the amounts due for the use of the Services with any amounts claimed as damages.
Article 9 – PQS Liability – Limitations and Penalties
9.1 PQS is not liable to the Customer and/ of its Parties and/ or third parties for the delay or nonperformance of the Services, caused by unforeseeable circumstances and/or not controllable and/or not imputable and/or in fact of the third party (Examples: unforeseen circumstances, force majeure, suspension of work imposed by the Public Authority, public service interruption). In general, the liability of PQS in relation to bonds and liabilities under the Contract is subject to the following limitations.
9.2 PQS assumes no other obligations or guarantees than those expressly provided for in Contract and these replace any other implied or explicit warranties, including any warranty for defects and/or relating to suitability for a purpose or use specific, subject only to any mandatory provisions of the law.
9.3 In no event shall PQS be liable to the Customer for any damage caused by losing profit, loss of business opportunities or savings, loss of data, loss of administrative efficiency, image damage or loss of commercial reputation and the Customer acknowledges that PQS is not liable for any loss, damage or injury, be they direct or indirect, foreseeable or unforeseeable, including, but not limited to exhaustive, economic/financial, business, revenue and profit losses and/or goodwill commercial, in any way inherent in or related to the malfunction, suspension or interruption of Services due to force majeure, as identified in art. 7 and, in any case, to facts not attributable to it, even if related to the systems used to provide the Services.
9.4 The total amount refundable by PQS for damages caused by the same cause to the Customer in relation to the obligations referred to in the Contract, which may manifest themselves even after the termination of the Contract itself, concern only and exclusively those relating to fumigation certificates (treatment + issue certificate) and in any case may not exceed the amount equal to the Tariff paid by the Customer for the last 3 (three) months (“Maximum Compensation”). The Maximum Indemnity will include any penalty and/or indemnification, refund of price and cost incurred; the Customer waives further and indirect damages, without prejudice to the liability of PQS for intent and/or gross negligence.
9.5 PQS is not responsible in any way for the logistics costs. PQS will not be entitled to any refund, compensation and/or compensation in respect of logistics and/or ancillary costs other than those strictly related to the treatment and issuance certificate.
9.6 PQS is not responsible for any tampering, forcing and fraudulent access to sites of processing, which are not attributable to PQS, that could compromise the quality of the Services.
9.7 The obligations of compensation provided for in this Article shall apply provided that the Customer claiming compensation:
– promptly notifies any circumstance in respect of which the obligation to compensate may become applicable to allow PQS to examine the issue in detail; and prepare a defense; a failure to do so will release PQS from its obligations under this Article;
– give PQS the full opportunity to prepare the counterclaims or the defensive and preventively approve in writing any settlement agreement.
9.8 The right to obtain compensation under this Article will lapse if not exercised within 6 (six) months from the date on which the Customer became aware of the facts on which he intends to base his claim.
9.9 The Customer will cooperate in good faith to achieve a convenient transaction; PQS will be fully released in the event of transactions entered into by the Customer without his consent.
9.10 The provisions of this Article shall remain effective beyond the expiry, termination of any cause of the Contract.
Article 10 – Failure to fulfil obligations and termination
10.1 The Contract can be automatically terminated pursuant to art. 1456 cod. civ. with simple notice written by one Party to another in the event of (i) submission to insolvency proceedings or application for the submission to the same, (ii) convocation of assembly for the resolution of request for submission to insolvency proceedings, (iii) liquidation, (iv) disposal creditors of a substantial part of their assets, (v) insolvency, (vi) cessation of business.
10.2 If the Customer does not fulfil the contractual obligations or if there are justified reasons to fear that it will not be able to meet its obligations, PQS is entitled, alternatively, to suspend performance or terminate the Contract; the Customer must however, pay in full the agreed fee, also as a penalty, made subject to compensation for further damage suffered by PQS as a result of the default.
10.3 Except in the case of wilful misconduct or gross negligence of PQS, the delay in the performance of the Services and/or any disputes of the processing performed, do not give the Customer the right to terminate, in whole or in part, the Contract and the right to compensation for the damage; in such cases the Parties undertake to meet to examine the problem raised and identify the necessary actions; if a solution is not reached, the contract will be considered to be resolved by consensus without the need for any further communication or warning.
Article 11 – Confidentiality
11.1 The information of the Parties in relation to this Agreement and to relative fulfillment and/or exchanged between the Parties with reference to the Contract and/or related Annexes (collectively: “Confidential Information”) are to be considered as confidential.
11.2 The Parties shall maintain the Confidential Information as such and shall make their best efforts to ensure that any third party with knowledge of the Confidential Information maintains such confidentiality.
11.3 Notwithstanding the foregoing, each Party may disclose Confidential Information:
i. to the extent reasonably required of its employees or representatives for the purpose of the proper performance of the Contract;
ii. to the extent reasonably required, in relations with the respective Credit institutions, Auditors, lawyers, or other professional consultants;
iii. to the extent reasonably required of their shareholders for the sole purpose of obtaining any corporate approvals that are necessary under this agreement or by law; and iv. to the extent necessary for compliance with any legal authorization or to which the parties must submit, provided that a communication is to be given to the other Party with reasonable notice prior to disclosure to third parties.
11.4 Even if, pursuant to this Article, a Party has the right to disclose some or all of the Confidential Information, the Party shall however and in any case do what as far as is reasonably practicable to preserve confidentiality to the greatest extent possible.
11.5 The provisions of this Article shall not apply to Confidential Information which have become public knowledge, unless this has been determined by default attributable to a Party.
11.6 The Parts guarantee moreover that own employees and/or collaborators however interested from the management of the service ensure the standards of maximum confidentiality with reference to the personal data of the subjects with whom they came into contact, committing to the management and processing of the same according to the applicable regulations.
11.7 This confidentiality clause shall remain valid and effective for at least the duration of the Contract, and in any case for a period not less than 3 years after the loss of effect – for any reason – of the Contract.
Article 12 – PROCESSING OF PERSONAL DATA – GDPR
12.1 The Parties acknowledge and agree that if a party processes personal data as defined in the European Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to data processing and the free movement of such data and repealing Directive 95/46/EC (also called “GDPR”), must do so in strict compliance with the GDPR.
12.2 In addition, the Parties shall ensure and undertake to duly comply with all imposed laws, regulations and best practices on the protection of data in this regard, where the GDPR must be considered the minimum standard.
12.3 The disclosure of Personal Data to third parties, by any means, is prohibited, except where imposed or by law, or where written and informed approval has been obtained.
12.4 The Parties recognize that the obligations of this Article are essential and that any breach could seriously damage reputation and interests and could additionally have a significant (financial) impact. Therefore, the Parties will be liable for any damages attributable to any default on their
Article 13 – Applicable Law, Jurisdiction, Dispute Resolution
13.1 The Contract is regulated and interpreted according to Italian law.
13.2 For any dispute arising in connection with the Contract, the courts of Genoa shall have exclusive jurisdiction.
13.4 Should a dispute arise, the Parties undertake in good faith, not only on the The Committee on Legal Affairs, Citizens’ Rights has therefore tabled an amendment to this effect. If, in the opinion of one or both Parties, it is not possible to reach an acceptable solution within 30 (thirty) days of formalization of the complaint in written form, each Party will have the right to appeal to the competent judicial authority.