1.1 The supply of remote control systems and cable controls units (“Products”), as well as spare parts (which include components of the Products, “Spare Parts”) and accessories (i.e. batteries, chargers, belts, docking stations, shoulder harness, waist harness, covers and any further accessory manufactured by Elca Srl, “Accessories”) under the trademark “ELCA” by ELCA Srl (“ELCA”) to the client (“Client”) shall be governed by these general terms and conditions, which are an integral and essential part of the sale contract that will be executed between the parties (“Contract”). General conditions of any nature inserted in orders and/or other documents sent by the Client and/or of which ELCA has been made aware in any manner whatsoever, shall not apply to the supply of Products, Spare Parts and Accessories. 1.2 ELCA’s offers shall be valid for 60 days and may be revoked or changed in consideration of the data available at the moment of their issuance. 1.3 The Client’s orders shall be deemed as valid and binding for a period of 30 days as of the date of the relevant receipt. The Client may send the order by telefax (+39 0424 578520), email (firstname.lastname@example.org) or using the platform either directly (for authorized customers only) or through ELCA’s agents. 1.4 The Contract shall be considered as effective upon receipt by the Client of the order confirmation sent by ELCA or upon acceptance by the Client of the proposal sent by ELCA. 1.5 ELCA shall be the sole owner of the documentation and of the sampling provided to the Client for the execution of the Agreement. Unless otherwise authorized in writing by ELCA, said documentation shall not be available to third parties and, upon request, it shall be returned to ELCA.
2 Place and terms of delivery
2.1 Unless otherwise indicated in the Contract, Products, Spare Parts and Accessories will be delivered Delivered at Place (DAP – Incoterms 2020) Client’s premises. ELCA will not be responsible for any damage, loss or theft which may occur to the Products, Spare Parts and Accessories after delivery according to this section 2.1. 2.2 Unless otherwise agreed, the maximum term of delivery of the Products, Spare Parts and Accessories shall be 90 (ninety) days as of the entering into force of the Contract. In no event the term of delivery shall be deemed as of essence and, therefore, in case of late deliveries, not due to willful misconduct or gross negligence, the Client shall not be entitled to withdraw or terminate the Contract, without prejudice to what set forth by the following section 2.3. 2.3 ELCA shall promptly notify the Client of any delay with respect to the agreed delivery terms, and it shall indicate the new scheduled delivery date. In case of delays exceeding 60 days as of the agreed date, the Client shall be entitled to withdraw from the Contract or to terminate the same by sending a written notice to ELCA within 5 days as of the date of receipt of the notice of the new delivery date. 2.4 Unless in the event of willful misconduct or gross negligence, ELCA shall in no case be deemed as liable for damages suffered by the Client as a consequence of late deliveries of the Products, Spare Parts and Accessories.
3 Price and Payments
3.1 The price of the Products, Spare Parts and Accessories is specified in the Contract. Unless otherwise specified, the price shall be deemed as net of VAT. Unless otherwise agreed in writing by the parties, payment shall be made within 5 days as of the date of the delivery of the Products, Spare Parts and Accessories to the Client. 3.2 Should the Client fail to comply with the agreed payment terms, as well as should the Client fail to timely pay the Products, Spare Parts and Accessories previously delivered by, even if related to other contractual relationships, ELCA shall be entitled to suspend the relevant deliveries until full payment of the outstanding credit has been made and until proper guarantees for future deliveries have been given by the Purchaser. In any case, ELCA will have the right to charge interests on the unpaid amounts according to art. 5 of the legislative decree n. 231/2002 and following amendments. 3.3 In case of late collection or failure of collection of the Products, Spare Parts and Accessories, the Client shall not be entitled to any extension of the payment terms. Payments made by means of securities, promissory notes, cheques, assignments of credits or other means, will not give rise to novation of the original contractual relationships and they shall be deemed as accepted by ELCA subject to actual collection of the due amount. The expenses for collection, deduction, registration, etc. of securities or effects shall be borne by the Client. 3.4 In no case the Client shall be entitled to compensate the amount due to ELCA as price of the Products, Spare Parts and Accessories, with any amount due by ELCA at any title whatsoever.
4 Retention of title
4.1 ELCA shall be the sole owner of the Products, Spare Parts and Accessories until the date of their full payment, should such payment be made by instalments. It is agreed that pursuant to art. 1523 of the Italian civil code all risks are transferred to the Client as of the date in which goods are delivered, irrespective of the date of the actual transfer of the ownership. 4.2 Should the Contract be terminated due to the Client’s breach of contract, the installments already paid by the Client shall be kept by ELCA as an indemnity within the limits set forth by art. 1526 of the Italian civil code, without prejudice to ELCA’s right to claim for further damages.
5.1 ELCA guarantees that the Products will be free from defect in material and workmanship for a period of 24 months and the Spare Parts and Accessories for a period of 12 months starting from the date specified in art. 5.3 below, unless different terms are set forth by specific conditions granted to the Client. The warranty shall apply, within the limitations and the conditions set forth below, also to the expenses (if any) for the workforce’s interventions at ELCA’s repair facilities or at its Authorized Provider. ELCA, directly or through its Authorized Provider, shall repair the Products or repair/replace the Spare Parts and Accessories which, at its sole discretion, are acknowledged as defective; it is in any case excluded the new replacement of the Products and the extension or the postponement of the warranty terms after the repair. 5.2 For intervention within the warranty period at ELCA’s repair facilities: the Product, Spare Part or Accessory, adequately packed, shall be sent to ELCA; the shipping expenses shall be borne by the Client who shall also bear the related risk, whilst the repaired Product, or the repaired or replaced Spare Part / Accessory, will be delivered at the Client’s expenses and risk. For intervention within the warranty period at an Authorized Provider: the Product, Spare Part or Accessory shall be brought at the Authorized Provider at the Client’s own care, cost and risk and at the end of the agreed activity the Client shall collect the good at its own care, cost and risk. Should the Client request intervention within the warranty period at its premises or at its construction site, it shall bear the intervention’s costs according to the fees usually charged by ELCA or by its Authorized Providers. The ownership of all the components replaced within the warranty period shall be automatically transferred to ELCA which will take care of the relevant waste disposal bearing the related costs. 5.3 The 24-month term for Products and the 12month term for Spare Parts And Accessories shall be effective as of the date of delivery, if the warranty intervention is directly requested by Client or the date of actual purchase by the Client as demonstrated by a document showing such purchase, in case of purchase by the Client from ELCA’s sales network, but within a maximum term of 30 months for the Products and 18 months for Spare Parts and Accessories as of the date of delivery. 5.4 Subject to forfeiture of warranty, notice of defects shall be given by the Client in writing not later than 8 days from the date of delivery or, in case of hidden defects, from the date of the relevant discovery. The burden of proof shall lie with the Client. 5.5 Without prejudice to the compulsory product’s liability law and any liability for willful misconduct or gross negligence, ELCA’s obligations and the Client’s right to the warranty shall be limited to the repair of the Products or the repair or replacement of the Spare Parts and Accessories found to be defective, pursuant to what provided for by this section 5. It is therefore expressly excluded any right of the Client to claim for direct, indirect or incidental damages suffered as a consequence of faults or defects of the Products, Spare Parts and Accessories within the warranty period, such as, but not limited to, damages caused by non-usage of the system or by machine downtime, as well as loss of profits. Furthermore, the Client shall not be entitled to terminate the Contract in case of defects found on the Products, Spare Parts and Accessories as referred in this warranty. 5.6 The warranty period hereby provided for shall apply only to ELCA Products, Spare Parts and Accessories in their original configuration, included accessories, if any. The warranty shall not apply to faults and breakage caused by: a) transportation; b) overvoltage/overcurrent, chemical and electrochemical agents, weather phenomena; c) installation, adjustment, repair modification and use of equipment not in compliance with the specifications provided for in the instruction manual, or in breach of the technical and/or safety measures, laws, rules and accepted practice required in the country of use, and anyhow not authorized by ELCA; d) working anomalies that can be solved by following the instructions provided in the instruction manual; e) repair made by third parties, not authorized by ELCA; f) tampering, improper use, damage, improper maintenance, incorrect test, any modification or alteration, including if trademarks or logos have been removed; g) any other improper use of the system not authorized by ELCA. Furthermore, the warranty shall not apply with regard to the replacement of components subject to wear and tear, of batteries and of fuses.
6 Returns and replacements of the Products, Spare Parts, Accessories
6.1 Returns and replacements of the Products, Spare Parts and Accessories shall always be authorized in writing by ELCA. The authorization to return or to replace is granted solely with reference to goods not in compliance with the Contract. Returns and replacements shall not be accepted after 3 months as of the date of delivery. Unless otherwise agreed in writing, all the returns shall be sent by the Client Delivery Duty Paid at ELCA’s warehouses in Via del Commercio, 7/b, 36065 Mussolente (VI) (Incoterms 2010), in their original packaging perfectly undamaged and containing all the manuals and accessories. ELCA shall be entitled to return to sender the Products, Spare Parts and Accessories received without authorization or not complete in each part. 6.2 In case the returned Products, Spare Parts and Accessories are actually not in compliance with the Contract, then ELCA shall be entitled, at its own discretion, to replace, modify or credit the goods to the Client. Unless otherwise agreed in writing, extra costs borne by ELCA shall be charged to the Client. The replacement or the restitution of the goods shall be carried out pursuant to the terms and ways set forth in paragraph 6.22 of these general conditions. 6.3 Any returned Product, Spare Part and Accessory shall be property of ELCA which will take care of the relevant waste disposal bearing the related costs, if need be.
7 Technical assistance
7.1 Any query of assistance shall be submitted by the Client to ELCA or to ELCA’s Authorized Center. 7.2 At the time of delivery of the Product, Spare Part and Accessory, the Client shall provide ELCA with the name of the contact person in charge for the assistance, as well as with all the data required for on line assistance, with facsimile number and with e-mail address. 7.3 Any out of warranty intervention on a Product, Spare Part or Accessory shall be warranted by ELCA for a period of 12 months on the single component replaced and/or on the specific repair carried out. 7.4 Any replaced Spare Part and Accessory shall be property of ELCA which will take care of the relevant waste disposal bearing the related costs.
8 Documents – Sectoral legislation
8.1 The Products, Spare Parts and Accessories supplied by ELCA will be accompanied by all relevant documents and safety requirements in compliance with the applicable law. 8.2 In any event, the Client shall be responsible for the compliance of any applicable law in the territory concerning the sale and supply of the Products, Spare Parts and Accessories.
9 Expenses and taxes
All charges, duties and taxes, present and future, with no exception, levied on the Contract, also with reference to the registration of its provisions, as well as on the relevant invoices shall be borne by the Client.
10 Governing Law
These general terms and conditions of sale and any relevant Contract shall be governed by the Italian law. Should the Client be a company registered under a foreign law, these general conditions of sale and any Contract shall be governed by and construed in accordance with the Italian law and the U.N. Convention on the International Sale of Goods (Wien, April 11th 1980) shall not apply.
11 Exclusive Court
All disputes arising out of or relating to the Contract and/or to the supply of the Products, Spare Parts and Accessories shall be exclusively submitted to and settled by the Court of Vicenza, Italy. As a partial derogation from what stated above, ELCA shall be entitled to institute legal proceedings before the competent Court of the place where the Client has its registered office.
Failure by ELCA to enforce at any time the provisions of these general conditions, shall not be construed as a waiver of such provision nor shall it prevent ELCA to thereafter enforce each and every provision herein.
13 Industrial and intellectual property rights
13.1 The Client hereby acknowledges that the trademarks of the Products, Spare Parts and Accessories as well as any and all patterns, specifications, samples, design, technical information and/ or data related to them are and shall remain the exclusive property of ELCA. 13.2 The Client shall not make any modifications to the Products, Spare Parts and Accessories nor alter, remove or in any way tamper with the trademarks, logos, information or number affixed or printed on the Products, Spare Parts and Accessories. 13.3 The Client shall not disclose the confidential information related to the Products, Spare Parts and Accessories, to ELCA and its commercial and industrial organization.
The Client shall not assign to a third party any right and/or credit deriving from or connected to the Contract, without ELCA’s prior written authorization.
15 Force Majeure
ELCA shall not be liable on account of any loss, damage or delay caused by strikes, union agitation, lock outs, accidents, fire, short supply or absence of raw materials or components, delay in the delivery by the suppliers and/or carriers, compliance with any law, regulation or other governmental order, whether or not valid, insurrection, earthquakes or other disasters of the elements, wars, embargoes, pandemics or any other cause beyond its reasonable control.
The Client _________________________________________________
For the purposes and to the extent provided for by articles 1341 and 1342 of the Italian civil code, the Client hereby states and declares to have carefully read and expressly approved each of the following clauses:
2.4 Exclusion of ELCA’s liability for delays in delivery;
3.2 ELCA’s’ right to suspend the supply in progress for non-fulfillment also relative to other contractual relationship;
3.4 Solve et Repete;
4 Retention of title;
5.5 Limitation of ELCA’s liability;
5.6 Exclusion of the warranty;
10 Applicable law;
11 Exclusive Court;
The Client _________________________________________________