Condiciones generales

GENERAL TERMS AND CONDITIONS OF SALE – DAKEN S.P.A.

1. SCOPE OF APPLICATION

Art. 1.1 – These General Terms and Conditions of Sale («GTC«) apply to any contract concluded by DAKEN S.p.A. («Company» or «Daken«) in relation to the sale of its products («Products«) to third parties («Client«).

Art. 1.2 – For the purposes of these GTC, the Company and the Client are also jointly referred to as the «Parties» and individually as the «Party«.

Art. 1.3 – Any special condition and exception or modifications to these GTC shall be valid only if specifically agreed in writing between the Parties. In any case, these GTC, as may be supplemented and/or amended as a result of the written agreement of the Parties, shall be considered an integral part of each sale and purchase contract concluded between the Parties  as a result of the exchange of the Order and the Order Confirmation (as defined below).

2. CONCLUSION OF THE CONTRACT

Art 2.1 – First Order. No contract for the sale of the Products shall be concluded between the Parties if the Client has not previously accepted these GTC.

If a particular Client has not already accepted these GTC, when such Client submits a given purchase order («Order«), Daken shall forward these GTC to such Client. The Client will have 5 (five) working days to send back to Daken these duly signed GTC («Acceptance Deadline«). In the event of failure to send the duly signed GTC within the Acceptance Deadline, the Order shall be automatically considered revoked and ineffective, legitimizing Daken not to process it. For the purposes of calculating the Acceptance Deadline, the Parties agree that shall be considered as working days those ones on which credit institutions are open for business in Italy.

Art. 2.2 – Subsequent orders. Without prejudice to the provisions of the previous article, in relation to any subsequent Order of a given Client who has already signed these GTC, there shall be no need to accept the GTC again, but the Clients’ Order shall be directly followed by the Order Confirmation pursuant to the following articles.

Art. 2.3 – Within 2 (two)  days of receipt of the signed GTC, in the case of a First Order, or of receipt of the Order, in the case of subsequent Orders, Daken shall send to the Client the relevant order confirmation if the Company is able to satisfy the Client’s requests («Order Confirmation«). It is understood that failure to send the Order Confirmation within the deadline referred to in the previous sentence is equivalent to the refusal of the Order.

Art. 2.4 – Once the Order Confirmation has been received, the sale and purchase contract between the Parties is considered concluded. In any case, the Client shall have 48 (forty-eight) hours to inform Daken of any discrepancies between the Order and the Order Confirmation or to notify any changes to the Order and/or the cancellation, even in full, of the Order itself («Modification Term«). Once the Modification Term has expired, the Order shall no longer be modified in any part and the contract shall be deemed to be fully effective between the Parties as resulting from the Order Confirmation. The Client expressly waives any claim arising from, or in any way attributable to, any discrepancies between the Order and the Order Confirmation that have not been promptly reported within the Modification Term.

Art. 2.5. – Content. Both in the Order and in the Order Confirmation, the following aspects must be specifically indicated: (i) the type of Products requested, (ii) the relative quantity, (iii) the price, (iv) the  packaging methods, (v) the delivery deadlines (vi) the delivery methods (vii)  the payment methods as well as (viii) the contact details for communications.

3. DELIVERY

Art. 3.1 – Any aspect concerning the delivery of the Products, such as deadlines and methods are indicated in the Order and in the Order Confirmation.

Art. 3.2. In any case, as far as delivery deadlines are concerned, it is understood that the indicated day and/period shall be in any case merely indicative, and not mandatory, as well as subject to a grace period of a maximum of 15 (fifteen) days with respect to what is indicated in the Order Confirmation.

Art. 3.3 – In the event of a force majeure event, which has occurred in Italy and has been concretely and factually ascertained or has been in any case ascertained  by a declaration by the Chamber of Commerce or the relevant authority, also with specific reference to national and company strikes, accidents, interruption of transport, customs bans, wars, and in general, any event that makes the performance too burdensome or impossible, shall give each Party the right to withdraw from the contract concluded as a result of the Order Confirmation or to extend the delivery deadline for a duration equal to that of the aforementioned event. If one of the Parties exercises the right of withdrawal pursuant to this article, the Client shall only be entitled to the reimbursement of the sums advanced, with the exclusion of any compensation for damages.

Art. 3.4 – Deliveries in several tranches are always permitted. The Client is always required to accept delivery of the Products, even in the case of partial deliveries.

Art. 3.5 – In the event that an Ex Works delivery (Incoterms 2020) has been agreed between the Parties at the Daken factory, the Parties agree that after 10 (ten) working days from the receipt of the notice of Products-ready, without the Client having physically collected the Products, Daken reserves the right to deliver the Products DAP (Incoterms 2020) charging the related costs and without the possibility for the Client to refuse such delivery for whatsoever reason.   

Art. 3.6 – Daken shall have the right to suspend the deliveries of the Products relating to a specific Order in the event that the Client is not in compliance with its payment obligations, including those relating to different Orders.

Art. 3.7 – Daken may also suspend deliveries in the event that the Client’s economic conditions change substantially, as well as in the case of one or more protests, enforcement procedures, pledges and/or mortgages, composition with creditors, cessation of activity or, in general, other insolvency proceedings.

Art. 3.8 – The Parties agree that, if a delivery method has been agreed according to the INCOTERMS clauses (2020) such that the delivery is to be understood as being carried out by Daken, the Client, if requested, must send to Daken within 5 (five) days of receipt of the Products, all the documentation required for transport, such as the CMR (consignment note for international road transport) duly signed by Daken, the carrier and the Client, or the EX-A document with exit visa (for non-EU transport), documentation constituting proof of delivery (for transport by courier), a declaration in which, taking up the data of the invoice in question, the receipt of the goods is attested,  and in general all the documentation indicated in Article 45-bis, paragraph 1, letter a) of EU Reg. 282/2011.

In the event that the delivery is to be understood as the responsibility of the Client, the latter must send to Daken, within the term referred to in the last paragraph of Article 45-bis, paragraph 1, letter b) of EU Reg. 282/2011 (i.e. by  the 10th day of the month following the transfer) all the documentation required for transport, such as the CMR (consignment note for international road transport) duly signed by Daken, the carrier and the Client, or the EX-A document with exit visa (for non-EU transport), documentation constituting proof of delivery (for transport by courier), a written declaration pursuant to art. 45-bis, paragraph 1, letter b)(i), as well as, in general, all the documentation referred to in art. 45-bis, paragraph 1, letter b) (ii) EU Reg. 282/2011.

Art. 3.9 – The obligations of the Client referred to in Art. 3.8 above shall apply even if the State of destination of the Products is not a Member State of the European Union or if the Client does not have its registered office within the Union. In such cases, for the purpose of identifying the exact documentation to be sent, it remains clear that the text of art. 45-bis mentioned above must be interpreted by purifying it from any reference to the European Union (e.g. «Member State of destination»  shall be understood simply as «State of destination»,and so on).

Art. 3.10 – By signing these GTC, the Client expressly agrees to be held directly liable to Daken for all damages that Daken may suffer due to non-compliance with the obligations referred to in Article 3.8 above, including damages resulting from penalties imposed by the competent tax and tax authorities.

4. PACKAGING

Art. 4.1 – The packaging methods are expressly indicated in the Order and in the Order Confirmation. 

Art. 4.2 – Upon receipt of the Products, it is the Client’s responsibility, before signing any documentation relating to the delivery and from which the unreserved acceptance of the same can be inferred, to immediately check (i) thequantities of Products received and (ii) any damage/defects visually noticeable to the packaging. In the event of problems of any kind relating to these aspects (quantity and integrity of the packaging), the Client must report this circumstance to the carrier before the latter is released. The Client must also ensure that its complaints are expressly stated on the transport document and on the CMR (if any).

If the carrier is released without the Client having raised any complaint and without any reservation being reported on the transport documents, the Products will be considered definitively delivered in the quantity ordered and free from any defect and/or damage as regards the packaging.

5. DEFECTS AND WARRANTY

Art. 5.1 – With regard to the identification of any apparent defect of the Products, the Client shall have 8 (eight) days from receipt of the Products to proceed with the written complaint against Daken. Therefore, with reference to the identification of apparent defects, it is the Client’s responsibility, once the Products have been received, to proceed with the unpacking and examination of the same within the aforementioned term. Once such term has elapsed, the Products shall be considered free from any apparent defect and therefore fully accepted, without reservation.

Art. 5.2 – In relation to any hidden and/or latent defects, the term of 8 (eight) days shall start from the actual knowledge of the defect, it being understood that in any case a defect that could have been well identified through a summary and visual examination of the unpackaged Product or in any case a defect that could have been identified using the diligence of an entrepreneur operating in the specific product sector to which the Products belong shall not be considered as hidden and/or latent. Therefore, it is understood that complaints shall not be accepted for all those Products that, once received, have been directly stored, without a prior unpacking and checking by the Client.

The Parties agree that after a period of one year from the receipt of the Products, it shall no longer be possible for the Client to plead any objection in relation to any hidden and/or latent defects.

Art. 5.3 – Each complaint must be accompanied by appropriate documentation, including photographs or videos, certifying the defects complained of the Products.

Art. 5.4. – From receipt of all the documentation, Daken shall have 5 (five) days to inform the Client whether or not the Products are covered by warranty.

If so, at Daken’s sole discretion, the Client shall be notified if the Products will be replaced, repaired and/or if a credit note will be issued to be used for future Orders.

Art. 5.5 – In any case, the following are excluded from the warranty:

• breakdowns or malfunctions that are the consequence of failure to comply with the instructions for assembly or use, causes external to the Products, negligence in maintenance and installation;
• damage or malfunction due to normal wear and tear;
• breakdowns or malfunctions resulting from tampering with the Products and/or replacement of parts with unauthorized spare parts;
• damages resulting from the use of the Products for purposes other than those for which they were designed.

6. PAYMENTS & INVOICING

Art. 6.1 – Payment must be made in accordance with the terms expressly agreed upon and as set out in the Order Confirmation.

Art. 6.2 – In the event of late payment, the Client shall pay Daken, without the need for formal notice, interest on arrears at the current bank rate, without prejudice to other actions for the recovery of the debt for which costs will be charged.

Art. 6.3 – The Client shall not raise any objection in order to avoid or delay payment, without prejudice to the cases referred to in art. 1462 c.c. Without prejudice to these limits, in all other cases such as, but not limited to, those of disputes regarding the quantity and/or quality of the Products, timeliness of delivery, aliud pro alio and the like, the Client must in any case proceed with the payment of the agreed price, without being able to oppose exceptions, and then proceeding with the possible repayment of the amount paid (solve et repete).  

Art. 6.4. – The Parties agree that the ownership of the Products shall remain with Daken until the full payment of the Order amount, provided that the Client assumes all risk in the Products from the time of delivery. 

7. DISTRIBUTION

Art. 7.1 If it is agreed between the Parties that in case the Client shall act as a distributor of Daken, the terms and conditions of this relationship shall be specifically detailed in a specific distribution framework agreement, without prejudice in any case to the applicability of these GTC, where compatible to everything not expressly regulated in such distribution framework agreement. 

• EXPRESS TERMINATION CLAUSE

Art. 8.1 – The Company shall have the right to notify the Client, pursuant to Article 1456 of the Italian Civil Code, of the termination of the sale and purchase contract concluded as a result of the exchange of the Order and Order Confirmation, in the following cases:

• In accordance with the provisions of Article 3.5 above;
• In the event of a delay in payment of more than 90 (ninety) days with respect to the agreed terms;
• If a distribution agreement has been entered into between the Parties, in the event of termination of the same.

Art. 8.2 – In the event of termination of the contract before the delivery of the Products, Daken shall be entitled not to complete the execution of the relevant Orders, without this in any way legitimizing the Client to make any claims against Daken.

• COMMUNICATIONS

Art. 9.1 – All communications referred to in these GTC must be made by e-mail to the addresses indicated in the Order and in the Order Confirmation.

Art. 9.2 By partial derogation of Art. 9.1 above, with regard to communications relating to Art. 5, and on condition that the Client has its registered office in Italy, the same must be sent by certified e-mail or registered mail with acknowledgement of receipt.

1. JURISDICTION AND APPLICABLE LAW

Art. 10.1 – For any dispute concerning the interpretation, execution, voidability, termination of these GTC or of a contract arising as a result of the exchange of the Order and Order Confirmation, the Judicial Authority of Bari shall have exclusive jurisdiction. The contract as well as these GTC shall be governed by Italian law with the express exception of the application of the conflict-of-law rules referred to in Law 218/95 as well as the 1980 Vienna Convention on the International Sale of Goods.

1. RESIDUAL PROVISIONS

Art. 11.1 – Under no circumstances the conclusion of the contract shall confer on the Client any right over Daken’s intellectual property, with the consequence that any distinctive sign, trademark and/or know-how attached to and/or connected to the Products shall remain the exclusive property of Daken, with the express prohibition of the Client to reproduce and/or use the same without the express authorisation of Daken.

Art. 11.2 – Each Order and its Order Confirmation corresponds to a single independent purchase and sale contract. Therefore, under no circumstances may subsequent and repeated Orders by the Client, even relating to the same types of Products, be considered and/or qualified as forming part of a single supply contract, or as referable to the same sale contract or in any case to any  «framework agreement» between the Parties, unless such hypotheses have been expressly provided for and agreed upon in writing.

Art. 11.3 – Under no circumstances shall Daken be liable to the Client for any damage that has been caused to the Client or to third parties as a result of tampering with the Products, use of the Products other than that for which they are intended according to the technical specifications indicated by Daken, replacement of parts of the Products with spare parts not supplied by Daken. Except in the above-mentioned cases, Daken shall be liable only for direct damages suffered by the Client and up to the amount equal to 30% (thirty) of the price set out in the Order Confirmation for such Product. Without prejudice to the mandatory limits of the law, Daken shall not be required to compensate the Client for loss of profit and/or any indirect and/or consequential damages. In any case, Daken shall not indemnify the Client for any damages, for any reason whatsoever, that the Client may be called upon to compensate to third parties.

Art. 11.4 – The Client agrees not to disclose, use, export or re-export, either directly or indirectly, the Products, except in full compliance with all applicable export control regulations.

Art. 11.5 – In the interpretation of these GTC, reference shall be made to the proper meaning of the terms as commonly used in the English language, except for those terms expressly defined and consequently indicated with an initial capital letter, which, therefore, must be interpreted on the basis of this specific definition. The headings of the articles, where present, are inserted for descriptive purposes only and may not be used to interpret a given article in a way that differs from what emerges from the content of the article itself.

Art. 11.6 Privacy. Daken spa has implemented the additions and amendments made to the subject of Personal Data Protection by EU Reg. 679/2016 (GDPR) and the Italian Privacy Code (Legislative Decree 196/2003) as amended by Legislative Decree 101/2018. By signing these GTC, the Client declares that he/she has read  on the website [•] the  Information provided pursuant to Articles 13 and 14 of the GDPR, on the processing of personal data.

OFFICE OPENING HOURS:

Monday to Friday:

• 8.30 – 12.30
• 13.00 – 17.00

WAREHOUSE OPENING HOURS:

Monday to Friday:

• 8.00 – 12.00
• 14.00 – 16.00

HOLIDAYS AND CLOSING DAYS:

01/01 New Year’s Day

06/01 Epiphany

Easter

Easter Monday

25/04 Liberation day

01/05 Labor Day

02/06 Italian Republic Day

02/07 Regional Holiday

15/08 Summer Holiday

01/11 All Saints’ Day

08/12 Immaculate Conception’s Day

25/12 Christmas Day

26/12 Saint Stephen’s Day

Daken S.p.A. will inform all customers in advance about summer and winter holidays.