Area of application of the General Terms and Conditions of Sale
1.1 These General Terms and Conditions of Sale (hereinafter, “General Terms and Conditions”) apply to all purchase and sale, supply and distribution agreements (“Agreement”) concluded between Nice S.p.A. (“Nice”) and its direct customers as distributors, qualified professional installers and key clients (“Client”, and, jointly with Nice, “Parties”), relating to all Nice brand products, or products marketed by it, or any other brand of its subsidiary companies (“Products”). Unless otherwise agreed by the Parties, the General Terms and Conditions are an integral part of the Agreement concluded between Nice and the Client and cancel and replace any other contrasting clause or agreement contained in the order formulated by the Client or in any other document originating from it. The General Terms and Conditions prevail, in particular, over any General Terms and Conditions of Purchase adopted by the Client. In any case, any further agreements between the Parties only prevail over the General Terms and Conditions if concluded in writing and signed by both Parties. The General Terms and Conditions come into effect from the moment of their publication on mediums which allow the Client to know them and replace all previous applicable versions.
1.2 It is agreed that these General Terms and Conditions apply exclusively to the Agreement concluded with the Client and are not extended to third parties, meaning, as such and in particular, the final customer/user of the Products (“Final User”), who must contact their own installer/retailer and with whom Nice has no relationship.
Methods of concluding the Agreement
The Agreement between Nice and the Client may be concluded solely using the following methods: (i) specific written agreement; (ii) order of the Client (“Order”) and subsequent order confirmation of Nice (“Order Confirmation”), when the latter is received by the Client; (iii) proposal of Nice (“Proposal”) and subsequent acceptance of the Client (“Acceptance”), when the latter is received by Nice. It is agreed that the Agreement is considered as concluded through conduct implying an intent, and will be fully effective when Nice, after the period indicated in art. 3 has passed and even in the absence of an Order Confirmation, fulfils the Client's Order.
When 5 (five) days have passed from its transmission to Nice, and provided the relative Order Confirmation has not been issued, the Order can no longer be cancelled by the Client, even partially, unless said Client reimburses Nice for all losses, costs and damages suffered for this reason. Nice reserves the right to accept or refuse the Order, in full or in part, on the basis of its conformity with these General Terms and Conditions and availability of the Products requested. Nice also reserves the right to make technical changes to the Products on the price list at any moment and this will not entitle the Client to submit any claim in this regard. The Order is to be intended as “subject to availability and price list changes” in all cases.
4.1 The information indicated on the price lists, or in any other informational material published by Nice, is indicative only and may be altered by Nice at any time. In particular, the prices indicated on the price list are to be intended as ex works, excluding VAT, and indicative only, as changes may be made to them and communicated to the Client by Nice in the manners it deems appropriate. Each new Nice price list cancels and replaces the previous ones.
4.2 In any case, the amount due from the Client for purchase of the Products (“Price”) corresponds with the current Nice list-price at the moment of (i) signing the written agreement; (ii) the Order Confirmation; (iii) Acceptance.
5.1 Unless otherwise agreed by the Parties, delivery of the Products is made EXW (Incoterms 2010) – Nice warehouse indicated in the Agreement. Nice does not transport the Products and does not load them for the carrier chosen by the Client, unless otherwise agreed by the Parties.
5.2 Without prejudice to art. 5.1 above, and unless otherwise agreed by the Parties, Nice may indicate, in the Client's name and on its behalf, the type of shipment, the carrier and the route used for transport, which will be paid by the Client in all cases.
5.3 The Client is liable for loss and/or damage of the Products from the moment when the Products are made available at the Nice warehouse indicated in the Agreement. The Products always travel at the Client's total risk. Any theft, misplacement, loss, deterioration or shortage of the Products does not discharge the Client from its obligation of paying the Price, if the Products have been properly made available to the Client at the Nice warehouse. The Products are not covered by transport insurance unless the Client has specifically requested and paid for this.
5.4 The Product delivery times are indicated in the Agreement and are to be intended as purely indicative and not binding. It is agreed that any late delivery of the Products which does not exceed normal tolerance will not entitle the Client to terminate the Agreement, even partially, and/or to claim compensation of damages or refuse delivery of the Products.
5.5 The Client agrees to collect the Products as soon as they are made available at the Nice warehouse. In the case of late collection, Nice will be entitled both to full payment of the Price and to reimbursement of the costs of storage, custody and safe-keeping of the Products at the Nice warehouse, without prejudice to the right to claim any additional damages. Nice may not be held liable for any damage, direct or consequential, caused to the Products or to other things or third parties, by the Products which are uncollected or collected late remaining at the Nice warehouse or the warehouses of forwarders, carriers or other parties legitimately involved in storage of the Products.
5.6 If the Client does not collect the Products within 10 (ten) days from the moment when they become available at the Nice warehouse, Nice reserves the right to terminate the Agreement immediately in accordance with art. 10 below, without prejudice to the right to claim any additional damages.
5.7 Nice is discharged from the obligation of delivering the Products as a result of unforeseeable circumstances or cases of force majeure, in accordance with art. 14 below.
6.1 All the Products are carefully checked and inspected by Nice. Nice warrants to the Client that the Products have no manufacturing defects or faults or any dependent upon the materials used, if installed and used as specifically indicated by Nice.
6.2 The warranty validity period is:
(a) 3 (three) years from the manufacturing date indicated on the relative label, for all Nice brand products or of any other brand, excepting the products indicated in point (b) below;
(b) 5 (five) years from the manufacturing date indicated on the relative label, for tubular motors and the relative accessories (adapters and supports), excluding control devices under the Nice brand or any other brand it owns;
The warranty is only applicable if the Client submits a valid receipt on purchase of the Products, issued by Nice and indicating the code of the Products installed.
6.3 The Nice warranty is provided exclusively to the Client. It is agreed that if the Client provides a more extensive warranty to the Final User, the Client may not claim the excess part from Nice, which responds solely for the warranty it provides under these General Terms and Conditions. The validity period of the warranty is fixed and non-extendible, even if the Client exercises the right of recourse against Nice.
6.4 In the case of operation, Nice will either repair or replace Products deemed to be faulty, at its own unquestionable discretion. Any other compensation and/or compensation of any consequential damage or lost earnings, direct or consequential, is excluded, except in the case of wilful misconduct or gross negligence of Nice. Products may not be returned, under any circumstances, without the prior written consent of Nice. Unless otherwise agreed, all expenses for returns of allegedly faulty Products will be paid by the Client, unless Nice acknowledges the presence of a fault, for which it will send repaired or replacement Products at its own expense. All replaced products will remain the property of Nice.
6.5 The warranty excludes, and Nice may not be held liable for, the following cases:
(1) problems caused by incorrect installation of the Products. The warranty is only applicable if the Client, or whoever installs the Products on its behalf, satisfies current safety regulations and has the necessary and sufficient technical capability to install them up to standard;
(2) tampering by unauthorised personnel or connection, association or interaction of the Products with other products not supplied by Nice. The Client is, in fact, required to use the Products only in association with other products manufactured or supplied by Nice, failing which the warranty will be invalid;
(3) failure to follow the assembly and/or electrical connection instructions or electrical and/or other specific current standards at the moment of installation, and also failure to comply with the diagrams and/or connection types required at the moment of installation, use and/or connection of Nice accessories and/or electrical or mechanical components;
(4) use and/or application of the Products for improper purposes with respect to their nature, capacity and bearing weight;
(5) faults and/or damage caused by transport of the Products or by external chemical or physical agents or by atmospheric and natural events in general, unforeseeable circumstances or force majeure.
Notice of defects
For the warranty of art. 6 to be valid, the Client must notify any defects discovered, in writing, via certified public e-mail (PEC), within the 8 (eight) days since (i) delivery of the Products, in the case of defects which are visible on external examination of the boxes, through a written note of the Client on the delivery note, or (ii) discovery, in the case of concealed defects and/or operating faults of the Products, failing which the warranty will not apply. The notice must indicate the defect found precisely, in order to allow it to be checked immediately. After this period, the products will be considered as accepted, to all intents and purposes; furthermore, use and/or installation of clearly defective products excludes the possibility of submitting claims or complaints relating to said defects. It is agreed that any notice of defects does not entitle the Client to suspend, delay or not to pay the Price due for the Products delivered.
Reservation of ownership
8.1 Even after delivery to the Client, the Products remain the exclusive property of Nice up until full payment of the Price by the Client, including capital, interest and accessory charges, irrespective of who has custody of the Products and even in the case of subsequent resale of them by the Client. The Client is required to inform third-party purchasers that Nice reserves ownership of the Products sold. In the case of partial or total non-payment of the Products, Nice will immediately repossess the Products sold, wherever they are. The Client is required to inform Nice of the names of the purchasers of the Products, from whom Nice will be entitled to claim or recollect them. Any costs of transport and/or recovery of the Products will be paid exclusively by the Client.
8.2 Bank cheques, promissory notes and assigned credit will only be deemed as effective payment from the date when they are cashed.
Terms and Conditions of Payment
9.1 The Client must pay the Price of the Products within the agreed time. All payments must be made exclusively to Nice and in the times and methods indicated on the invoice, unless otherwise agreed by the Parties. It is agreed that any complaints or disputes will not entitle the Client to suspend or delay payment of the disputed products, nor yet other supplies. In general terms, the Client may not take any action or raise any objection until the full price of the products to which said dispute or objection refers has been paid.
9.2 Without prejudice to additional damages, late payment with respect to the agreed time will lead to default interest being applied to the Client, in the amount established by legislative decree no. 231 dated 09.10.2002 and subsequent amendments and additions, enacting the European Parliament and European Council Directive no. 2000/35/EC, without any further communication or notice of default being necessary.
9.3 Non-payment within the agreed times will also entitle Nice to make subsequent deliveries of the Products conditional upon (i) full payment of the Price for which payment is overdue, plus the relative interest, and also payments about to fall due, due to application to the Client of the acceleration clause on subsequent payments, or (ii) simultaneous providing of appropriate security on payment by the Client.
9.4 Unless otherwise agreed by the Parties, offsetting amounts due to the Client from Nice against amounts due from the Client, for any reason, deriving from or in any way connected to the Agreement, is not permitted.
Suspension of fulfilment of the Agreement and express termination clause
10.1 In the case of late payment or non-payment of the Price, even partial, by the Client, with respect to the agreed time, Nice reserves the right to suspend, without prior notice, the fulfilment and/or delivery of the Order or to withhold any sum due from Nice to the Client for any reason and/or immediately to terminate any other current agreements with the Client, even if different to the one to which late payment and/or non payment refers, without entitling the Client to demand indemnity or compensation.
10.2 Pursuant to and in accordance with art. 1456 of the Italian Civil Code, Nice will be entitled immediately and legally to terminate the Agreement through simple written notice to the Client that it is invoking this art. 10 and without the need for any further formalities, without prejudice to any additional damages suffered by Nice, in the following cases: 1) non-payment or late payment, even partial, of the Price by the Client. The Products delivered for which the Price has not been paid must be returned to Nice at the full expense of the Client; 2) Client's failure to collect the Products within the times indicated in art. 5.6; 3) intervening changes in the person of the Client, its governance or shareholders, situation, assets and/or business reputation, and also protests being raised, pending enforcement or insolvency proceedings, passing of payment orders, suspensions, deferments and/or delays in the Client's obligations with third-party creditors.
Patents, trademarks and distinctive marks
The Client is aware that Nice Products are protected by patents and the subject of know-how and design which is the exclusive industrial property of Nice, according to the Industrial Property Code (legislative decree no. 30 dated 10.02.2005). The Client is expressly prohibited from breaching said rights of Nice and, in any case, must not remove, conceal and/or in any way alter the trademarks and distinctive marks or any other acronyms of any kind affixed to the Products, or add new ones of any nature. Reproduction and/or use of the trademark of Nice, its subsidiary companies or any other distinctive mark present on the Products is forbidden without the written authorisation of Nice.
The information necessary to identify the certifications obtained is shown on the Products. Knowledge of and compliance with standards governing use of the Products is an essential obligation of the Client and the Final User.
Pursuant to 13 Reg. UE 2016/679 (General Data Protection Regulation – “GDPR”) and art. art. 13 of the Personal Data Protection Code (leg. decree no. 196 dated 30.06.2003 – “Code”), Nice, as the data controller, informs the Client that it will process personal data provided by the Client in accordance with these General Terms and Conditions, and guarantees full compliance with all the requirements of the Code, representing, for this purpose, that (i) the data will be processed in accordance with current regulations, using hard copy, computer or electronic communication mediums to store, manage and transmit said data, and, in any case, instruments which guarantee its security and confidentiality, for the following purposes: those connected with and instrumental to fulfilment of the General Terms and Conditions and also all administrative and accounting purposes connected therewith, those connected with satisfaction of legal obligations, regulations, national and EU standards and also those deriving from orders of the Authorities responsible for this; (ii) providing the data is compulsory whenever required by legal and contractual obligations and the Client's refusal to provide the data or allow its subsequent processing could make it impossible for Nice to continue the contractual relationship; (iii) the data will not be disclosed to the public and may only be communicated, exclusively for the aforesaid purposes, to duly authorised parties, to whom communication is necessary to achieve the purposes of (i) above, including other Nice group companies; (iv) the Client, as the interested party, has the protection rights envisaged by the law including the right to know what data is processed, (pursuant to art. 15 of the GDPR) have the data corrected and/or deleted and oppose its use (pursuant to art. 17, 18 of the GDPR – art. 7 of the Code).
14.1 Force majeure means any unforeseeable act or event, independent of the Parties' intentions and beyond their control and to which no immediate remedy is possible, such as, by way of non-limiting example, war, embargo, riots, revolts, fire, sabotage, strikes, natural catastrophes, measures of government authorities, impossibility of obtaining supplies of raw materials, equipment, fuel, energy, components, labour or transport.
14.2 If an event of force majeure occurs, the Parties' obligations which cannot be satisfied for said reason will be automatically deferred, without penalties, for a period corresponding with the duration of said event, with the exception of the Client's obligation to pay the Price, for which the deadlines agreed by the Parties continue to apply. The Parties must promptly notify the occurrence of an event of force majeure and its reasonable duration.
14.3 The Parties agree, in all cases, to make all necessary efforts to recommence satisfying the obligations deferred by the event of force majeure as soon as possible.
Applicable law and court with jurisdiction
These General Terms and Conditions must be interpreted and fulfilled according to Italian law. Treviso Court has sole jurisdiction for any dispute which may arise between the Parties over the validity, existence, efficacy, interpretation, fulfilment and/or termination of the General Terms and Conditions or, in any case, deriving from and/or relating to them.