GENERAL TERMS AND CONDITIONS OF SALE
OF CALZATURIFICIO DUCA DEL NORD S.R.L.
1) Scope of Application
1.1 These General Terms and Conditions of Sale (“GTC”) shall apply to all supplies of products (“Products”) which CALZATURIFICIO DUCA DEL NORD S.r.l (“DUCA DEL NORD”), with registered address at 63812 Montegranaro (FM), Via Elpidiense Sud 289 / A-B, Italy, shall make to any client (“CLIENT”), even if no specific reference is made to them from time to time.
2) Products - Amendments
2.1 All information and data regarding the Products including information and data appearing on the website, catalogues, brochures, price lists or similar documents of DUCA DEL NORD or Product samples is merely indicative and not binding on DUCA DEL NORD, except were expressly stated in these GTC or in the Sale Contract (as hereinafter defined).
2.2 Before ordering the Products, it is the responsibility of the CLIENT to make sure that the Products comply with the laws and regulations applicable in the place where CLIENT will import, distribute or use them in any way. In this respect, DUCA DEL NORD will provide all necessary information regarding the Products as requested by CLIENT.
2.3 DUCA DEL NORD may modify the Products as it deems necessary, giving prior notification to the CLIENT in order to allow the CLIENT to verify their compliance with the laws and regulations applicable in the place where CLIENT will import, distribute or use them.
3) Offers – Orders – Order Acceptance
3.1 Offers and/or written or verbal quotations of DUCA DEL NORD are not considered to be valid contractual proposals.
3.2 CLIENT must send any request of supply of Products to DUCA DEL NORD by email, through sales representatives of DUCA DEL NORD, verbally. Such request will be valid as a proposal to purchase (“Order Proposal”). The Order Proposal must include all the information with respect to the Products ordered (Product Code, description, quantity, unit price), delivery terms and date of delivery requested, and any other information requested by DUCA DEL NORD from time to time as well as the CLIENTS invoicing details.
3.3 The Order Proposal shall not be deemed binding on the CLIENT.
3.4 The Order Proposal is not binding on DUCA DEL NORD which reserves the right to accept it, propose modification to the quantity, price and terms and conditions of payment and/or to other conditions of sale (“Order Confirmation” or “Confirmed Order”) or to refuse it.
The Order Confirmation shall be binding on DUCA DEL NORD (“Sale Contract”) in case and when:
- DUCA DEL NORD expressly accepts the Order Proposal by sending an Order Confirmation reflecting the same conditions of the Sale Contract; or
- DUCA DEL NORD accepts the Order Proposal thus proposing modification to sale conditions of the same, and the CLIENT:
- sends the Order Confirmation undersigned in writing or accepts it in writing; or
- executes the payment of the down payment requested by DUCA DEL NORD with the Order Confirmation.
3.5 In the event that the Products forming the subject of the Sale Contract have not been delivered to the CLIENT and CLIENT intends to terminate the Sale Contract entered into pursuant to article 3.4, DUCA DEL NORD may, at its sole discretion, accept to terminate the Sale Contract subject to the application of liquidated damages amounting to 30% (thirty percent) of the value of the Sale Contract in question. Should this be the case, DUCA DEL NORD, will retain ownership of the Products forming the subject of the Sale Contract, without prejudice to the right of DUCA DEL NORD to claim any higher damages suffered.
3.6 DUCA DEL NORD reserves the right to refuse requests, orders or Order Proposals from the CLIENT if a claim or dispute is under way in relation to a preceding Order Proposal and/or Sale Contract. This also applies in the event that at discretion of DUCA DEL NORD the CLIENT is not a suitable client, including for example in the event of prior breach of contract or any other just cause, particularly if the CLIENT was involved in fraudulent activity of any kind.
3.7 The Products are only intended for sale to individuals who are end-user consumers ( “Customers”). Customers include the individual adult who acts for purposes not related to trade, business or professional activity.
3.8 Any request of additions or modifications made to the Order Proposal and/or to the Confirmed Order, even if executed through agents or sales representatives of DUCA DEL NORD, will not be binding on DUCA DEL NORD if received after conclusion of the Sale Contract according to article 3.4 above. DUCA DEL NORD may accept or refuse them at its own discretion.
4) Packaging – Delivery Terms – Delivery Times
4.1 Products will be packaged using packaging systems normally used by DUCA DEL NORD for the same Products, bearing in mind the transportation agreed and the place of destination of the Products. Special packaging or additional protection must be expressly requested by the CLIENT and relative costs will be borne by the CLIENT.
4.2 Without prejudice to any provision to the contrary contained in the Sale Contract, the Products will be delivered to the CLIENT pursuant to the rule Incoterms® 2010 ICC DAP – Address of the CLIENT indicated in the Sale Contract.
The CLIENT shall execute any activity requested to the CLIENT in accordance with the Incoterms® rule agreed for delivery (collection at the agreed place, contract the carrier, nomination of the vessel, etc.), within and no later than 15 (fifteen) days from the delivery of the Products by DUCA DEL NORD in accordance with the agreed Incoterms® rule.
Should this not be the case, CLIENT shall indemnify DUCA DEL NORD and hold it harmless for any cost, damage, fine and interests born or paid by the latter in connection with the aforesaid violation.
4.3 In any case, where the CLIENT shall take care of the transport of the Products, CLIENT authorizes DUCA DEL NORD to undersign, in the name and on behalf of CLIENT, any and all transport documents which shall be signed at the time of collection of the Products at the premises of SELLER, such as the CMR.
4.4 In the event that the delivery term agreed between the parties provides that CLIENT shall take care of the transport of the Products outside Italy, CLIENT undertakes within the term of 60 (sixty) days from delivery:
- to provide DUCA DEL NORD with a copy of the transport document attesting the delivery of the Products outside Italy or the CLIENT’s declaration to this effect; and where applicable
- to submit in Italy, to the competent authorities, the documents proving the exportation of the Products (SAD-EX) as well as to notify SELLER as soon as such submission is accomplished.
Should this not be the case, CLIENT shall indemnify DUCA DEL NORD nad hold it harmless for any damage, fine and interests paid by the letter in connection with the aforesaid violation.
4.5 Without prejudice to any provision to the contrary in the Sale Contract, DUCA DEL NORD shall deliver the Products within the terms agreed with the Sale Contract even by making partial deliveries. Except for cases of gross negligence or wilful misconduct DUCA DEL NORD will not be bound to compensate CLIENT for any direct or indirect damages suffered as a result of a delay in delivery.
Without prejudice to the provisions of article 9.1 hereunder, CLIENT shall have the right to request termination of the sales agreement should delivery be delayed by more than 30 (thirty) days from the date of delivery agreed in the Sale Contract.
4.6 Upon receipt of the Products, CLIENT must report any discrepancy with respect to the transportation documents or damage to packaging occurring during transport by inserting the relative contestation in the transport document and shall:
- Request the carrier to attest by signing the contestation; and
- Immediately inform DUCA DEL NORD in writing sending a copy of said document by and not later than 5 (five) days from the date of receipt of the Products.
In any other event, DUCA DEL NORD will not be held responsible for loss, theft or damage occurring to the Products during transportation even if DUCA DEL NORD assumes the risk of such transportation wholly or partly.
5) Prices – Payment – Late payment
5.1 Products will be supplied at the prices agreed by the parties in the Sale Contract or, should nothing be included in the Sale Contract to this effect, at the prices shown in the DUCA DEL NORD price list applicable at the time of sending the Order.
5.2 Product prices shall be in Euro, net of VAT and will not include any additional expense and tariffs or taxes of any kind (such as delivery expenses) which DUCA DEL NORD will invoice to the CLIENT.
5.3 CLIENT is to effect payment according to the terms indicated in the Sale Contract or as separately agreed in writing by the parties. In the event that such payment terms are not agreed between the parties, invoices must be paid by bank transfer by not later than 120 (one hundred and twenty) days from delivery of the Products. Payments will be deemed to have been made by the CLIENT only when the relative amount has been received in DUCA DEL NORD’s bank account.
5.4 In the event that the CLIENT delays payment, DUCA DEL NORD may, subject to a written notice given to the CLIENT; suspend deliveries as yet to be made until such time as the amounts due and the relative interests have been settled.
In the event that such amounts and the relative interest payable remain outstanding after 30 (thirty) working days following the above referred notice, DUCA DEL NORD may at its discretion, without prejudice to its rights pursuant to law or these GTC:
- Request immediate settlement of all amounts due – notwithstanding any agreement to payment by instalments and/or if payment instruments were issued;
- To terminate the sales agreement and to offset amounts received with respect to the sale contract and/or other sales contracts against amounts due by the CLIENT, retaining the relative amounts to compensate damages;
- Effect future deliveries only against upfront payment.
5.5 The rights pursuant to the preceding article 5.4 may be exercised by DUCA DEL NORD even in the event that the CLIENT:
- Is in liquidation, undergoing arrangement with creditors proceedings, insolvency, bankruptcy or enforcement proceedings; or
- Is undergoing financial difficulties which could prejudice the proper fulfilment of payment obligations which result from, by way of example but not exclusively, the client not being in a position to be insured, a significant number of claims are raised against it or if CLIENT is in breach of its payment obligations towards its suppliers.
5.6 The CLIENT will not be able to claim possible breach by DUCA DEL NORD not may it take legal action against the latter until such time as full payment is made to DUCA DEL NORD for all amounts payable to it.
6.1 DUCA DEL NORD guarantees to CLIENT that all Products will be in line with the Sale Contract and free from manufacturing defects.
Imperfection of Products or materials conducible to the fact that the Products are hand-crafted such as, but not limited to variation in colour shades effecting the homogeneity of the Products shall be excluded from the guarantee.
This guarantee shall be valid for a period of 12 (twelve) months from date of delivery of the Products.
6.2 CLIENT must examine the Products as quickly as possible and on pain of forfeiting such right, must report in writing to DUCA DEL NORD, by fax or email:
- Any discrepancy in the type and/or the quantity of the Products received as well as apparent defects of the Products: by and not later than 7 (seven) days following delivery to the CLIENT;
- Latent defects of the Products: by and not later than 7 (seven) days from discovering them and in any case within the guarantee period.
6.3 DUCA DEL NORD shall have to right to check the Products or samples of the Products which the CLIENT holds to be non-compliant or defective. In this respect, CLIENT may return to DUCA DEL NORD Products which it holds to be non-compliant or defective only upon written approval by DUCA DEL NORD and on conditions that the CLIENT bears all delivery costs. Approval to return the Products and the samples claimed to be faulty or defective shall not be deemed to constitute acknowledgment by DUCA DEL NORD of the defect or fault. Should DUCA DEL NORD hold that the Products are effectively defective on the basis of information provided by the CLIENT, it may agree to bear the expenses for collection of the defective Products at the CLIENT.
6.4 In the event that DUCA DEL NORD acknowledges that the Products are non-compliant or defective, CLIENT may at DUCA DEL NORD’s option, have the right to:
- Partial or total exemption from payment of the price depending on the seriousness of the defect; or
- Gratuitous repair or substitution of the defective or non-compliant Products.
In this latter case, the Products which have been repaired at the DUCA DEL NORD premises and/or those which must be delivered in substitution will be delivered to the CLIENT pursuant to the delivery term DAP, Incoterms® ICC 2010 at place agreed in the Sale Contract.
6.5 Rights and remedies described in article 6 constitute the only rights and remedies in terms of the guarantee given to the CLIENT. As allowed by law, DUCA DEL NORD shall not incur any other liabilities and or obligations with respect to Products which may be non-compliant and/or defective including by way of example but not exclusively liability and obligations for direct, indirect or consequential damages, loss of profit etc. This guarantee substitutes and excludes any other guarantee whether express or implied pursuant to law or otherwise.
7) Trademarks – Resale of Product
7.1 The CLIENT declares and acknowledges that the trademark Officine Creative® and the trade names or other distinguishing marks shown in the brochure, the website and other documents and materials pertaining to DUCA DEL NORD which refer or are referable to DUCA DEL NORD or its Products are exclusively owned by or exclusively licensed to DUCA DEL NORD.
The CLIENT declares and acknowledges also that the above referred to trademarks and distinctive marks are linked to DUCA DEL NORD’s, market placement and distinguish the brand as a luxury brand signifying quality and Italian handcraft, a market placement which DUCA DEL NORD intends to preserve.
7.2 The CLIENT may not register or allow registration of the trademarks, brand names or other distinguishing marks belonging or licensed to DUCA DEL NORD, nor other trademarks, names and distinguishing marks which are similar and which may be confused with those of or used by DUCA DEL NORD and may not use the marks and/or distinguishing signs which refer to DUCA DEL NORD and/or to its Products or images and/or intellectual property rights of DUCA DEL NORD, to register domain names or undertake any activity if not expressly authorised in writing by DUCA DEL NORD, on social media or any other social network, by way of example but not exhaustively, Facebook, Instagram, Twitter, Google+, Linkedin, YouTube and similar. In the event that the CLIENT needs to use such instruments then such use will be made as indicated by DUCA DEL NORD and without negatively effecting the brand prestige.
7.3 The CLIENT undertakes to sell the Products exclusively to end users and only at its point of sales situated at the address indicated in the Order Proposal, or to authorised resellers as indicated on DUCA DEL NORD’s website.
CLIENT may also resell the Products on line on its website on condition that such site is in line with the brand image, the image of the Products and that of DUCA DEL NORD and on condition that the website in question and the sale thereon is expressly approved in writing by DUCA DEL NORD. Client may not resell the Products on marketplaces and/or third-party websites, unless expressly and prior authorized in writing by DUCA DEL NORD, which would be provided only after having ascertained its coherence with the brand image, the image of the Products and that of DUCA DEL NORD. In case DUCA DEL NORD provides such authorization, it will have a six-month duration and will be automatically renewed for 6-months periods, unless withdrawn by DUCA DEL NORD with 2 (two) days written notice. At all events, such authorization shall be withdrawn by DUCA DEL NORD, at any time, with immediate effect, in case DUCA DEL NORD ascertains that the CLIENT executed activities or selling policies which hindered or are capable of hindering the brand image, the image of the Products and that of DUCA DEL NORD.
8) Applicable Law – Dispute resolution
8.1 These GTC and all contracts of sale the parties shall enter into pursuant to these GTC will be governed by the Vienna Convention of 1980 on international sale of goods and, for matters not covered therein, by Italian law.
8.2 Any dispute arising in connection with these GTC and/or contracts to be entered or entered into pursuant thereto:
- in case the CLIENT has its registered office in the European Union, Switzerland, Norway and Iceland, shall be subjected to the exclusive jurisdiction of the Italian courts and shall be exclusively referred to the Court of the Place where DUCA DEL NORD has its registered address;
- in any other case, shall be exclusively referred to and finally resolved by arbitration, by a sole arbitrator, in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers' Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these Rules. The seat of arbitration shall be, and the award shall be delivered in, Milan (Italy). The language to be used in the arbitral proceedings shall be English.
8.3 DUCA DEL NORD, however, is entitled to bring a dispute or to file enforcement proceedings before the competent court, in the jurisdiction of the CLIENT.
9.1 DUCA DEL NORD will not be liable for failed or delayed compliance with the obligations to supply the Products if such delay or compliance is due to a force majeure event such as war, fire, earthquakes, floods, strikes, and labour issues, scarcity of raw materials, restriction of use of energy, public authority deeds or for reasons outside the control of DUCA DEL NORD or which DUCA DEL NORD cannot remedy in spite of its best efforts. In such case the delivery term for the supply will be extended by the period during which the force majeure event shall continue. CLIENT will have the right to terminate the sales agreement by sending a registered letter or by certified email to DUCA DEL NORD, with no liability or consequence on DUCA DEL NORD, if the event shall continue for a period exceeding 6 (six) months.
9.2 Any agreement which runs counter to the provisions of this GTC shall be effective against DUCA DEL NORD only if they are included in the Sale Contract. Agreements which are in conflict with the individual Sale Contracts will be valid only if agreed in writing. In no event will DUCA DEL NORD be bound by the general conditions of contract of the CLIENT.