TERMS AND CONDITIONS OF SALES
Valid until further notice from March 1, 2022 (updated on April 6, 2022).
Table of Contents
10. Intellectual Property Rights
12. Limitation of Liability (the customer’s attention is particularly drawn to this clause)
14. Consequences of Termination
The Customer’s attention is particularly drawn to the provisions of clause 9 (Charges and Payment) and clause 12 (Limitation of Liability).
- Business Day – a day other than a Saturday, Sunday or public holiday in Italy, when banks are open for business.
- Commencement Date – has the meaning given in clause 2.2.
- Conditions – these terms and conditions as amended from time to time in accordance with clause 16.8.
- Contract – the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
- Control – has the meaning given in Italian civil code, and the expression change of control shall be construed accordingly.
- Customer – the person or firm who purchases the Goods and/or Services from the Supplier.
- Deliverables – the deliverables set out in the Order produced by the Supplier for the Customer.
- Delivery Location – has the meaning given in clause 4.2.
- Force Majeure Event – has the meaning given to it in clause 15.
- Goods – the goods (or any part of them) set out in the Order.
- Goods Specifications – any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
- Intellectual Property Rights – patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
- Order – the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
- Services – the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
- Service Specification – the description or specification for the Services provided in writing by the Supplier to the Customer.
- Supplier – NEKOTEK S.r.l registered in Italy with VAT ID IT11608230964, R.E.A. MI 2613852.
- Supplier Materials – has the meaning given in clause 8.1.9.
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2.1 The Order constitutes a request by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date). It is understood that the Contract shall come into existence also in case of acceptance by the Customer or the Statement of Work (SOW), in which the project is defined.
2.3 Any samples, drawings, descriptive matter or advertising issued or transmitted by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Calendar Days from its date of issue or less as stated in “Offer validity” field in the quotation.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
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3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs – calculated on a full indemnity basis) and all other professional costs and expenses – suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract without any limitation.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
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4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the contract number OR all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Customer shall collect the Goods from the Supplier’s premises at Via Caldera 21, Easypoint Building, 1st Floor, 20153, Milano, Italy, or such other location as may be agreed with the Customer before delivery (Delivery Location) within five Business Days of the Supplier notifying the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused (i) by a Force Majeure Event (ii) or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods (iii) or is otherwise caused by an event attributable to the Customer.
4.6 If the Customer fails to take delivery of the Goods within five Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the five Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 The Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods charge the Customer for any shortfall below the price of the Goods.
4.8 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
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5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery or the date of installation and testing of the Goods (warranty period), the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Goods Specification;
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3 the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
5.2.1 the Customer gives notice in writing at the following email addresses (technical@nekotek.io, nekotek@pec.it) during the warranty period and not later than 8 Business Days from the discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2 or the Customer gives notice of the defect beyond the warranty period or during the warranty period but beyond 8 Business Days from the discovery;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, user or maintenance of the Goods or (if there are none) good trade practice;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the prior written consent of the Supplier or in any case of intervention on the Goods by third parties without prior written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.6 the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
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6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in full effectiveness condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 13.2.2 to clause 13.2.4; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before completing the payment:
6.4.1 it does so as principal and not as the Supplier’s agents; and
6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs and the payment of the price due by the customer to the supplier will become due immediately.
6.5 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 13.2.2. to clause 13.2.4, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Supplier may at any time require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product, without prejudice to the right to demand immediate payment of the price due and the right to obtain compensation for any damage suffered.
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7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification referenced in the Supplier’s offer to the Customer (and, if applicable, detailed in a related Statement of Work document), but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
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8.1 The Customer shall:
8.1.1 ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
8.1.2 co-operate in good faith with the Supplier in all matters relating to the Services;
8.1.3 agree with the Supplier on delivery dates and dates of access to the Customer’s premises;
8.1.4 provide the Supplier, its employees, agents, consultants, and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.5 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.6 prepare the Customer’s premises for the supply of the Services;
8.1.7 obtain and maintain all necessary licenses, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.8 comply with all applicable laws, including health and safety laws;
8.1.9 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions and authorisation; and
8.1.10 comply with any additional obligations as set out in the Service Specification and the Goods Specification.
8.1.11 inform the Supplier about Safety and Security regulations.
8.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
8.2.2 the Supplier shall not be liable for any costs or losses of any nature sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations; and
8.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
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9.1 The price for Goods:
9.1.1 shall be the price set out in the order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of the order; and
9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods.
9.2 The charges for Services shall be calculated on a time and materials basis:
9.2.1 the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in the order;
9.2.2 the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
9.2.3 unless otherwise specified in the order, the Supplier shall be entitled to charge an overtime rate of 50% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2.2; and
9.2.4 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials, plus a management fee of 10%.
9.3 The Supplier reserves the right to:
9.3.1 increase the price of the Goods, by giving notice to the Customer any time before delivering, to reflect any increase in the cost of the Good to the Supplier that is due to:
9.3.1.1 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
9.3.1.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
9.3.1.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. If the Goods are “off the shelf” products and identified as such in the Order, the Supplier may invoice in advance in respect of such Goods. In respect of Services, the Supplier shall invoice the Customer as agreed in the Order, or on completion of the Services.
9.5 The Customer shall pay each invoice submitted by the Supplier:
9.5.1 within and no later than 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
9.5.2 in full (in case of banking fees they will be paid by the Customer) and in cleared funds to a bank account nominated in writing by the Supplier.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 13 (Termination), the Customer shall pay default interest provided for by DLGS n. 231/2002 on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
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10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to:
10.4.1 copy and modify any materials provided by the Customer to the Supplier; and
10.4.2 use the Goods Specifications provided by the Customer, for the term of the Contract for the purpose of providing the Goods and Services to the Customer.
10.5 The Customer, with no time limitation, shall indemnify and keep indemnified the Supplier at all times in respect of any losses, damages, costs or expenses (including legal fees and other professional costs and expenses) suffered or incurred by, awarded against or agreed to be paid by the Supplier arising out or in connection with any claim made against the Supplier that the Supplier’s use of any Intellectual Property Rights in accordance with the license from the Customer pursuant to clause 10.4 actually or allegedly infringes the Intellectual Property Rights of a third party (an IPR Claim).
10.6 The Supplier shall:
10.6.1 promptly notify the Customer in writing of any IPR Claim, specifying the nature of the IPR Claim in reasonable detail;
10.6.2 allow the Customer to conduct all negotiations and proceedings and provide the Customer with such reasonable assistance as is required by the Customer, regarding the IPR Claim at the Customer’s cost; and
10.6.3 not, without prior consultation with the Customer, make any admission relating to the IPR Claim or attempt to settle it, provided that the Customer considers and defends any IPR Claim diligently, using competent counsel and in such a way as not to bring the reputation of Supplier into disrepute.
10.7 If an IPR Claim is made, or the Customer reasonably anticipates that an IPR Claim might be made, the Customer may, at its own expense and sole option, either:
10.7.1 procure for Supplier the right to continue using the part of the material which is subject to the IPR Claim; or
10.7.2 replace or modify, or procure the replacement or modification of, such material.
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Unless otherwise agreed in a separate Non-Disclosure Agreement between Supplier and Customer:
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposed of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with the clause 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
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12.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
12.2 The restrictions on liability in this clause 12 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
12.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
12.4.1 death or personal injury caused by negligence;
12.4.2 fraud or fraudulent misrepresentation; and
12.4.3 lack of free and undisturbed possession of Goods.
12.5 Subject to clause 12.4, the Supplier’s total liability to the Customer shall not exceed the cap set forth in the Supplier’s insurance cover referred to in clause 12.1.
12.6 This clause 12.6 sets out specific heads of excluded loss and exceptions from them;
12.6.1 Subject to clause 12.4, the types of loss listed in clause 12.6.3 are wholly excluded by the parties, but the types of loss and specific losses listed in clause 12.6.4 are not excluded.
12.6.2 If any loss falls into one or more of the categories in clause 12.6.3 and also falls into a category, or is specified, in clause 12.6.4, then it is not excluded.
12.6.3 The following types of loss are wholly excluded:
12.6.3.1 loss of profits;
12.6.3.2 loss of sales or business;
12.6.3.3 loss of agreements or contracts;
12.6.3.4 loss of anticipated savings;
12.6.3.5 loss of use or corruption of software, data or information;
12.6.3.6 loss of or damage to goodwill; and
12.6.3.7 indirect or consequential loss, including without limitation wasted expenditure.
12.6.4 The following types of loss and specific loss are not excluded:
12.6.4.1 sums paid by the Customer to the Supplier pursuant to the Contract, in respect of any Goods or Services not provided in accordance with the Contract;
12.6.4.2 additional costs of procuring and implementing replacements for, or alternatives to, Goods or Services not provided in accordance with the Contract. These include but are not limited to consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials;
12.6.4.3 losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of the Supplier. For these purposes, third party claims shall include but not be limited to demands, fines, penalties, actions, investigations or proceedings, including but not limited to those made or commenced by subcontractors, the Supplier’s personnel, regulators and customers of the Customer.
12.7 Unless the Customer notified the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire one month from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
12.9 This clause 12 shall survive the termination of the Contract.
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13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;
13.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
13.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.1.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
13.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment or
13.3.2 there is a change of control of the Customer.
13.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
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14.1 On termination of the Contract:
14.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
14.1.2 the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, shall be liable to pay for compensation for all damages suffered by the Supplier, wihtout prejudice to the Supplier’s right to return unpaid Goods. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
14.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
14.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
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16.1 Assignment and other dealings.
16.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
16.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract, nor assign or transfer the Contract itself, without the prior written consent of the Supplier.
16.2 Notices.
16.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
16.2.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
16.2.1.2 sent by email to the address specified in the order.
16.2.2 Any notice or communication shall be deemed to have been received:
16.2.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
16.2.2.2 if sent by pre-paid first-class post, on the day of actual delivery; and
16.2.2.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.2.2.3, business hours mean 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
16.2.3 This clause 16.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
16.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 16.3 shall not affect the validity and enforceability of the rest of the Contract.
16.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6 Entire agreement.
16.6.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.6.2 Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
16.6.3 Nothing in this clause shall limit or exclude any liability for fraud.
16.7 Third party rights.
16.7.1 Unless it expressly states otherwise, the Contract, once entered into, is valid and binding only between the Supplier and the Customer.
16.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
16.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
16.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the Italian law.
16.10 Jurisdiction. Each party irrevocably agrees that the court of Milan, Italy shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
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The Customer, by signing below, certifies to have received complete information and fully understands the “Terms and Conditions of Sale” set forth in the preceding clauses and particularly in clauses no. 5, 6, 8, 9, 12, 13, 14, 16.9, and 16.10, which have been specifically negotiated and are specifically accepted.
Read, confirmed and signed on _____/_____/________
The Customer
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