Terms of sale

 

1. CONTRACT

1.1 All the Orders must be sent by the Customer in writing to DEA SYSTEM indicating the product code, product and the quantity ordered as well as the Customer’s complete, correct and true fiscal data.

The Customer’s order is considered as an irrevocable offer which expires after 30 (thirty) days pursuant to Article 1329 of the Italian Civil Code. 

The Contract for the sale of DEA SYSTEM products will be taken to be binding once 8 (eight) days have passed from the date the Customer receives the Order Confirmation from DEA SYSTEM (even by fax or e-mail) unless correspondence is received from the Customer during that 8-day period. It is the Customer’s responsibility to check the Order Confirmation and to promptly communicate any errors or omissions and to return these Terms and Conditions with the acceptance herein signed.

1.2 DEA SYSTEM will not be bound by any general terms and conditions of any kind whatsoever in any Orders and/or other documents sent by Customer, unless DEA SYSTEM expressly accepts it in writing.

1.3 These terms and conditions supersede any terms and conditions referred to, offered or relied on whether written or verbal and whether in negotiation or at any stage in the dealings between the Parties.

 

2. DELIVERY/COLLECTION OF PRODUCTS

2.1 The terms of delivery are those indicated in the Order Confirmation and the products will be delivered per those agreed terms. DEA SYSTEM does not assume any responsibility for delays in delivery by the carrier. In any case the delivery terms shall not be considered as of essence.

2.2 In no case shall delays by DEA SYSTEM in the delivery of products confer on the Customer the right to terminate the Contract and/or claim for damages. The Customer waives any right to make any claim and/or counterclaim howsoever arising in this regard.

2.3 Delays in delivery of the product caused by a chance event, force majeure and/or any other reason which cannot be ascribed to DEA SYSTEM’s fraud and/or gross negligence, shall not entitle the Customer to claim any indemnity and/or damages nor shall it have the right to terminate the Contract or claim a reduction in the price of the supplied products.

Without limitation of the foregoing, force majeure shall be interpreted as including, but not limited to, strikes, union agitations, lock-out, fire, electricity breakdowns, short supply or lack of raw materials, delays in delivery by suppliers, regulation or other governmental order, earthquakes or any other natural disaster, embargo, war or revolution or any other event outside the reasonable control of DEA SYSTEM. 

2.4 In the event of delays by the Customer in collecting the products from DEA SYSTEM, the Customer will be responsible for all warehousing costs whether at the premises of DEA SYSTEM or a third party and all security costs ancillary thereto, notwithstanding the fact that the risk of damage, deuteriation, loss and/or theft passes to the Customer from the agreed delivery date. In the event of such delays the Customer shall be obliged, by way of penalty, to pay a further 30% of the price agreed.

The Customer acknowledges that the location and type of warehousing and security in place at the premises of DEA SYSTEM is ideal for the safe storage of the products and shall raise no queries or objections in that regard.

2.5 DEA SYTEM reserves the right in the event that products are not collected to issue proceedings against the Customer to protect its rights under the Contract.

 

3. PRICES AND PRICE-LIST

3.1 All prices are in Euro and do not include VAT.

3.2 Any variations to the pricelist will be communicated to the Customer by DEA SYSTEM in writing and the new prices will become effective for all transactions following such notification. 

3.3 Unless otherwise agreed, prices are (EX WORKS) INCOTERMS ® 2010 at DEA SYSTEM premises in Piovene Rocchette (Vicenza), Italy, and include standard packaging.

3.4 If, after concluding the Contract pursuant to Article 1.1, by some extraordinary or unpredictable reason, the performance of the Contract becomes excessively onerous pursuant to Article 1467 of the Italian Civil Code, DEA SYSTEM and the Client shall re-negotiate the Contract, without prejudice to DEA SYSTEM’s termination right pursuant to Article 1467, par. 1, of the Italian Civil Code. 

 

4. PAYMENTS

4.1 The terms and mode of payment are those indicated and/or referred in the Order confirmation. Any subsequent request for a change and/or delay in such payments must be agreed in writing with DEA SYSTEM. 

Payments made by credit instrument, bills of exchange, bank drafts, cheques, assignments or any other means shall not constitute a novation of the original contractual relationships and they are accepted by DEA SYSTEM subject to clearance of such instruments. 

The clearing charge, the discount charge and/or the registration-charge etc., of negotiable instruments, bills of exchange, cheques etc. are borne by the Client.

Payments shall be made at DEA SYSTEM’s registered office.

4.2 Lack of payment or delayed payment, even of part of the amount due, entitles DEA SYSTEM to suspend performance of the Contract until all sums due have been paid or acceptable guarantees have been received or to terminate the Contract. DEA SYSTEM reserves its right under the Contract and at Law in such circumstances and in circumstances where the Contract calls for partial delivery of the product or for payment of a deposit before the delivery.

In any case DEA SYSTEM shall be entitled to suspend performance of the Contract or to terminate the Contract should the financial standing or credit worthiness of the Customer be such that it gives rise to a substantial risk of lack of payment and where the Customer has not fully and timely paid for products already delivered by DEA SYSTEM, also with reference to previous sales. In these situations, DEA SYSTEM reserves the right to modify at its sole discretion the dates and methods of payment previously agreed in the Order confirmation.

4.3 In no case shall defects in the product, even when expressly acknowledged by DEA SYSTEM, or delays in the agreed delivery date, or delays in collection by the Customer, confer on the Customer the right to suspend payments and/or suspend any other obligations it may have under the Contract or under other contracts (“solve et repete” clause).

 

5. RESERVATION OF TITLE

5.1 In the case of the deferred or instalment payments, the product remains the property of DEA SYSTEM until full payment has been received; the Customer is obliged to keep the product perfectly safe. The Client authorizes DEA SYSTEM to perform, at the Client’s expenses, any formalities for opposing the retention of title towards third parties. 

5.2 Even if only one instalment is missed by the Customer, provided that said instalment exceeds the tolerance limit provided for by the law, DEA SYSTEM shall have the right to terminate the Contract pursuant to Article 1526 of the Italian Civil Code. In any case, the Parties agree that any prior instalment payments shall be retained by DEA SYSTEM as indemnity and fair compensation for the use of the products. DEA SYSTEM further reserves its rights to initiate proceedings for further compensation in such cases. 

 

6.  WARRANTY, CONTESTATIONS AND RETURNS

6.1 Since products such as photocells, remote controls and other accessories undergo more wear and tear than other products, DEA SYSTEM warrants the absence of any vices and/or defects in the abovementioned products for 27 (twenty-seven) months as from the manufacturing date, to be proved by a valid tax document carrying the data of the purchased product and by the label pasted to each product bearing the code and the manufacturing date. On motors and control panels, DEA SYSTEM warrants the absence of any vices and/or defects for 36 (thirty-six) months as from the manufacturing date printed on the original label.

If the possible Customers’ objections as to the existence of vices/defects in the products are well-founded and accepted by DEA SYSTEM in the warranty period, DEA SYSTEM shall repair for free or, at its sole discretion, shall substitute the viced/defective products for manufacturing defects. The warranty does not cover return/shipping costs to be incurred by the Customer for sending and receiving of materials repaired/replaced, according to the agreed delivery terms. 

It is agreed that the warranty here above is limited to the vices/defects of the products expressly acknowledged and accepted by DEA SYSTEM, it being understood that any other injury, damage or expense of any nature incurred by the Customer is excluded.

All products that are replaced will remain the property of DEA SYSTEM.

DEA SYSTEM will not take into account complaints about the quality of the products, when the relevant products have been sold as second-standard ones, or under special conditions, or when the relevant products have been repaired by third parties without the prior consent of DEA SYSTEM. 

Any claim or dispute arising from a single product will not exempt the Customer from the obligation to collect the remaining amount of products, in accordance with the agreed terms and conditions of delivery. 

6.2 Under penalty of cancellation of the warranty, the Customer shall notify in writing, by registered letter with return receipt, the found vices/defects within and no later than 8 (eight) days as from the delivery date, or, in case of hidden vices/defects, within and no later than 8 (eight) days as from the date of the relevant discovery. The burden of the proof as to the date of the discovery shall be borne by the Customer.

Unless otherwise agreed in writing by the Parties, all other ancillary expenses related to the substitution operations shall be borne by the Customer, who shall also take assume any related risks.

6.3 The warranty shall be excluded if the vices and/or the defects communicated by the Customer have been determined by the following causes:

I. the product has not been installed in accordance with the instruction manual provided by DEA SYSTEM; more precisely, without limitation of the foregoing, DEA SYSTEM shall not be liable in any manner whatsoever for failure to observe the assembly instructions and/or or the electrical connection instructions and/or for failure to observe other specific regulations applicable at the moment of the installation and/or when accessories and mechanical parts of DEA SYSTEM have been installed, used or connected without respecting the intended circuit diagram and the intended types of connection;

II. the product is not used in conformity with its intended purpose or its operating limits, as specified by the manufacturer in the technical documentation supplied with the product itself;

III. non-original DEA SYSTEM parts have been used for the installation of the motor;

IV. failures are due to tampering or improper repairs carried out by unauthorized personnel and/or by professionally unqualified personnel;

V. failures are caused by improper use or negligent use;

VI. lack of routine maintenance as specified by the manufacturer in the technical documentation supplied with the product itself;

VII. external factors such as electric shock, tampering even accidental, bumps and drops even accidental, exposure to moisture or steam, use in extreme thermal or environmental conditions, floods or other natural disasters;

VIII. removal or voluntary cancellation of the serial number.

IX. storage and/or safekeeping of the products in places and/or with modalities inadequate for their perfect conservation;

X. any other cause which cannot be ascribed to DEA SYSTEM.

The repair or replacement of parts during the warranty period does not extend the expiry date of the guarantee. DEA SYSTEM will not award any compensation for the period of inactivity of the product.

6.4 DEA SYSTEM shall accept, the return of defective products it being understood that the Customer shall bear all expenses and shall be the sole person responsible for the delivery in DEA SYSTEM premises in Piovene Rocchette (Vicenza, Italy), Via della Tecnica no. 6, and provided that DEA SYSTEM previously authorizes the same delivery by agreeing on the return method; in case of non-compliance, the returned products will be rejected.

Returned goods shall carry the corresponding DEA SYSTEM form properly filled in with item code, manufacturing date and a short description of each product failure.

 

7. LIMITATION OF LIABILITY

7.1 In no circumstances shall DEA SYSTEM be liable towards the Client or third parties for any damages, whether direct or indirect, to anyone or anything (including animals) attributed to the utilisation of the product for a purpose inappropriate to its original purpose and/or capacity, and/or when the product is used beyond its maximum load, or when the interruption of the product’s use is forced, as well as when the damage is a consequence of the non-compliance to any provisions set out in the instruction manual, with particular reference to the installation, usage and safety warnings.

7.2 Without prejudice of Article 19, DEA SYSTEM draws the attention of the Customer to its obligations under the applicable law and in particular the obligations it has under Health and Safety legislation. DEA SYSTEM shall not have any responsibility in relation thereto nor shall it be liable in any way for any damage caused to anyone or anything (including animals) attributed to the incorrect and/or insufficient information to the final customer with reference to the technical features, the instruction manual, the installation, the usage, the maintenance, the safety warnings of the resold products.

 

8. PROHIBITION TO TRANSFER TO THIRD PARTIES

8.1 The Customer does not have the right to re-sell, and/or transfer the product to third parties and/or give the product as guarantee without first having paid the entire price due to DEA SYSTEM.

8.2 Should the delivered products be affected by possible enforcement measures taken by third parties, notwithstanding their proper names, the Customer shall immediately communicate it to DEA SYSTEM by registered letter. Lacking said communication, DEA SYSTEM shall have the right to terminate the Contract with immediate effect, retaining the amounts already paid as a penalty and without prejudice to DEA SYSTEM ‘s right to claim for further damages.

 

9. TRADEMARK AND INTELLECTUAL PROPERTY RIGHTS

9.1 The marketed products bear the registered trademark DEA SYSTEM®. DEA SYSTEM expressly prohibits the Customer to use/exploit/market the trademark for purposes other than this contract, except when previously authorized in writing by DEA SYSTEM. For the same reason, DEA SYSTEM reserves the right to inhibit the use of the trademark in case of violation of this prohibition and/or in case of lacking payment of the price by the Customer, and in any other case in which the Customer’s use is illegal, both in off-line and/or on-line modalities.

9.2 DEA SYSTEM is the proprietor of all the technical and operational information, as well as of any information relating to the product, which is intended to be used only for the execution of this Contract. For this reason, DEA SYSTEM prohibits the relevant dissemination to third parties. 

 9.3 The Customer who has become aware of any counterfeiting, imitation, illegal/wrong use of the trademark and/or of the commercial names shall immediately communicate it to DEA SYSTEM. 

 

10. TAXES AND DUTIES

Any taxes, tariffs, duties, customs, fees, tolls, licenses, authorizations, leaves and/or other fiscal and/or customs and/or administrative burdens, notwithstanding their names, provided for by the law of the Country in which the products are imported and/or by the law of the Country in which the products will be resold, are completely and exclusively borne by the Customer, without prejudice to the provisions of the agreed term.

 

11. RE-SALE OF THE PRODUCT

11.1 Without prejudice to the Customer’s contractual freedom, DEA SYSTEM suggests that the Customer uses the recommended retail price contained in the DEA SYSTEM price list. 

11.2 Due to the technical and operational features of the products and to the installation/maintenance/safety provisions, DEA SYSTEM draws the Customer attention to the need to ascertain that the third parties operating on the product have the adequate professional qualification. If the Customer fails in this responsibility, DEA SYSTEM shall not be responsible for any claim howsoever arising either from the Customer or a third party.

 

12. EXTRA

Any extras subsequently ordered will be subject to these terms and conditions. The modalities of delivery of extras shall be as agreed between DEA SYSTEM and the Customer.

 

13. NO ASSIGNMENT OF CONTRACT

This Contract shall not be assigned by the Customer in whole or in part without the prior written consent of DEA SYSTEM. 

DEA SYSTEM reserves the right to assign this Contract in whole or in part on prior notification to the Customer.

 

14. LANGUAGE

These terms and conditions are in the Italian language, which is the sole binding text. In the event of same being translated into another language, the translation is for indicative purposes only and shall have no legal effect. 

 

15. WAIVER

In any instance in which DEA SYSTEM either does not enforce or does not insist on strict compliance with one or more clauses of the Contract, this shall not be interpreted as a general waiver to said rights and shall not prevent DEA SYSTEM from subsequently relying on the punctual and strict compliance therewith.

 

16. SEVERIBILTY

The possible invalidity or ineffectiveness of any provisions of these General Conditions of Sale, for any reason whatsoever, shall not imply the invalidity of the entire Contract nor the invalidity of any other contractual provisions which are non directly linked to and/or dependent on the clause to be held null or ineffective.

 

17. EXCLUSIVE JURISDICTION

For any dispute related to the interpretation, execution and/or termination of the Contract the sole competent court shall be exclusively the Court of Vicenza (Italy).

Notwithstanding the above, DEA SYSTEM shall have the right to start any legal proceedings, included preventive or provisional proceedings, before the Court of the place where the Customer has its domicile pursuant to Article 63 of the EU Regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and subsequent amendments.

 

18. APPLICABLE LAW 

The Italian law is applicable to the present Contract, it being understood that the application of the United Nations Convention on the International Sale of Goods (Vienna Convention 11th April 1980) is in any case excluded. 

 

19. QUALITY SYSTEM – TECHNICAL RULES

19.1 The Customer is aware that the goods marketed by DEA SYSTEM consist in mechanical/electronic products and their accessories and that the relevant manufacturing, marketing, installation and maintenance are ruled by specific provisions; therefore, their distribution and installation requires the assistance of qualified and expert professionals, who can provide to the final customer a complete set of information on the technical and operational features of the products, their correct installation and safety measures (in particular, reference is made to the provisions UNI EN 12453 “Industrial Commercial and garage doors and gates - product standard” and UNI EN 12445 “Industrial Commercial and garage doors and gates – safety in use of power operated doors”, and to the European directives as well). The Customer is aware that all automatic locking devices fall within the scope of application of the “Machinery” Directive, with any corresponding obligations for resellers and installers and with the obligation to keep the technical documentation file of the product, to carry out the maintenance and with reference to the EC declaration of conformity.

19.2 As a consequence of the provision under Article 19.1 above, the Customer must be a qualified seller/installer of the products and he or she must therefore:

a) have a past experience of at least 1 (one) year in the sale and/or installation of products similar to the products of DEA SYSTEM;

b) provide to the final customer a consultancy service in order to guide the choice towards the most adequate product, taking into consideration the intended use of the product itself, in order to reduce the risk of an improper use;

c) be able to provide the final customer with the most accurate and complete information about the products – included the provisions regulating the installation – in relation to the questions raised by the final customer.

It is expressly understood that, in the light of the above and in order to ensure the safety of the final users/customers with respect to the products of DEA SYSTEM, the Customer is authorized to sell the products to the following categories:

- to any professional buyer, distributor and/or installer, provided that said professional has already been selected also by DEA SYSTEM or provided that DEA SYSTEM has previously given its consent;

- to any final customer, provided that it has been previously and duly verified that the installation of the DEA SYSTEM products is carried out by a professional installer.