General terms of sale

Valid for the Ekinex® product range.

1. DEFINITIONS

1.1. In these General Terms and Conditions of Sale, the terms below shall have the following meaning:

• a) “Manufacturer”: Ekinex S.p.A, with registered office in Vaprio d’Agogna (28010 NO), via Novara 37;
• b) “Purchaser”: professional customer, sole proprietor or company, requesting the purchase of Ekinex® products;
• c) “Party” or “Parties”: Ekinex S.p.A. and the Buyer;
• d) “Order” or “Orders”: the order or purchase orders concerning Ekinex® products issued by the Purchaser to Ekinex S.p.A.;
• e) “Products”: all Ekinex®-branded products for home and building control, which can be found in the Ekinex® product catalogue in printed and/or electronic form and on the website www.ekinex.com;
• f) “General Conditions”: the general conditions of sale set out below.

2. SCOPE OF APPLICATION

2.1. These General Terms and Conditions of Sale govern all purchase contracts concerning Ekinex® products concluded between the Parties;

2.2. The Buyer may not invoke or object to any conditions other than those contained in the General Conditions. Consequently, any conditions specified in writing shall have no validity. by the Buyer on the Order, or at any other stage of the contractual negotiation, and also after acceptance or knowledge of the General Conditions, as well as any other terms and conditions that the Buyer may have. General conditions of purchase of the Buyer. The execution, even partial, of the Order by Ekinex S.p.A. or any other fulfilment by Ekinex S.p.A. towards the Buyer is not valid and does not apply to the Buyer. Shall be construed as tacit or implicit acceptance of any general terms and conditions other than these Conditions, unless expressly accepted in writing by Ekinex S.p.A. Even in the event of derogations agreed upon in writing, these conditions shall continue to apply for the parts not expressly derogated.

2.3. The General Terms and Conditions are only valid for contractual relations between Ekinex S.p.A. and professional traders, and therefore Legislative Decree no. 206 of 6 September 2005shall not apply. (Consumer Code) and subsequent amendments.

2.4. Ekinex S.p.A. reserves the right to amend these General Terms and Conditions of Sale at any time, which shall be communicated to the customer without prior notice. Each contract shall be governed by the General Terms and Conditions of Sale in force at the time the order is placed by the Customer.

3. FORMATION OF THE CONTRACT

3.1. The acceptance by the Buyer of the offer or the confirmation of the order by Ekinex S.p.A., in whatever manner, entails the application of these General Conditions of Sale.

3.2. The offers made by agents, representatives and commercial auxiliaries of Ekinex S.p.A. are not binding for Ekinex S.p.A. until they have been confirmed by Ekinex S.p.A. in writing. The offers of sale made by Ekinex S.p.A. are valid for 30 days from the date of their formulation and are limited to the complete supply of what is listed therein. After the expiry of this period, the offer to sell shall no longer be valid.

3.3. The Order sent by the Purchaser to Ekinex S.p.A. constitutes an irrevocable contractual proposal binding for a period of three months, starting from the moment Ekinex S.p.A. becomes aware of it. Within the aforementioned three months Ekinex S.p.A., at its sole discretion, reserves the right to accept or refuse the Order, informing the Buyer accordingly. In the event that the order confirmation of Ekinex S.p.A. differs from the order sent by the Buyer with regard to the quantity of products, prices, discounts and delivery methods, this confirmation shall be considered as a counter proposal by Ekinex S.p.A., which must be expressly accepted by the Buyer in order for the contract to be considered concluded.

3.4. By sending the order, the Customer acknowledges and declares that he/she has read all the information provided to him/her during the purchase procedure and that he/she fully accepts these General Terms and Conditions of Sale.

3.5. Acceptance is expressed by a confirmation e-mail sent to the e-mail address indicated by the Customer. The confirmation message shall contain the date and time of the order and a ‘Customer Order Number’ to be used for any further communication with Ekinex S.p.A.. The customer may monitor the status of the order at any time by contacting Ekinex S.p.A. at the following telephone number +39 0321 1828980 or at the following e-mail address sales@ekinex.com.

3.6. If the Buyer cancels the Order before its acceptance or execution by Ekinex S.p.A., Ekinex S.p.A. may ask the Buyer to reimburse the costs of the Order.

4. PRODUCT AVAILABILITY

4.1. Ekinex S.p.A. reserves the right to change the Ekinex® product catalogue and the technical characteristics of the products without prior notice. 

4.2. If one of the requested products is not available, Ekinex S.p.A. undertakes to contact the Customer within 20 working days from the time of placing the order, communicating by e-mail, to the email address provided by the customer, the unavailability and possible alternative solutions. In this case, the customer can wait for the delivery of the order, if Ekinex S.p.A. believes that it can be found on the market. The product is not available or cancel the order and receive a refund of any price already paid.

4.3. Before purchasing each product, carefully check the installation requirements according to the regulations of the country where the installation will take place and compatibility according to the design specifications.

4.4. Ekinex guarantees the correct installation of its products only with the flush-mounting boxes shown in the planner or technical catalogue.  For the use of different flush-mounting boxes we recommend that you contact our technical support (support@ekinex.com) or check the correct installation yourself.

5. PAYMENT METHODS

5.1. The prices of the products refer to the price list in force at the time of acceptance of the sale offer by the Buyer or at the time Ekinex S.p.A. issues the order confirmation. Ekinex S.p.A. reserves the right to modify the current price list at any time, after written notice to the Buyer, in the event of increases in the cost of raw materials, labour costs or any other factor leading to a significant increase in production costs. The prices of the products are always Ex-Carrier (FCA Incoterms 2010) and therefore the risks related to the supply shall pass to the Buyer at the time the products are handed over to the carrier, unless otherwise agreed upon in writing between the parties.

5.2. Payments must be made in accordance with the relevant information contained in the sales offer or order confirmation. Payments and any other sum due for any reason to Ekinex S.p.A. shall be made at its domicile and, unless otherwise agreed, in Euros.

5.3. Any delay or irregularity in payment gives Ekinex S.p.A. the right to:

• a) suspend ongoing supplies, even if not related to the payment in question;
• b) vary the terms of payment and discount for subsequent supplies, including by requiring advance payment or the provision of additional guarantees;
• c) demand, from the due date for payment and without the need for formal notice, default interest on the sum still due, at the rate provided for by the rules of the law currently in force for commercial transactions (in particular Legislative Decree 231/2002 and subsequent additions), without prejudice in any case to the right of Ekinex S.p.A. to claim compensation for any additional costs incurred damage suffered. Moreover, in the above mentioned cases, any amount due to Ekinex S.p.A. for any reason whatsoever becomes immediately due. The Buyer shall be obliged to pay the products in full even if exceptions, disputes or controversies arise which will only be settled after payment of the amount due;
• d) terminate the contract pursuant to Article 1456 of the Italian Civil Code by notifying by registered letter with return receipt or certified e-mail the intention to exercise this right. 
  The termination shall be effective for both parties from the date of receipt of the communication.

6. TRANSPORT AND DELIVERY OF PRODUCTS

6.1. The delivery of the goods is Ex-Carrier (FC Incoterms) and therefore the risks relating to the supply pass to the Buyer at the moment the products are handed over to the carrier, unless otherwise stated written agreements between the parties.

6.2. The delivery terms, unless expressly agreed otherwise, are purely indicative. In the event that the execution of the order is prevented by the occurrence of circumstances of force majeure, by the failure to regularity of supplies of raw materials or other unforeseeable circumstances occurring, the delivery terms shall be deemed extended and new terms shall be determined by mutual agreement between the parties, without any compensation and/or damages being awarded for the delay in delivery.

6.3. Upon delivery of the goods by the courier, the Customer is obliged to check that the contents of the package delivered correspond to what was ordered and indicated in the invoice sent by email. Any damage to the packaging and/or to the product or the mismatch between the number of packages and the invoice must be reported within 3 working days of delivery to customer service of Ekinex S.p.A. at the following e-mail address sales@ekinex.com. After the expiry of this period, the customer may no longer make any complaints about the external characteristics of the product delivered as well as on the number of packages received.

7. FORCE MAJEURE

7.1. Force Majeure is the occurrence of an event or circumstance (“Force Majeure Event”) which prevents a party from performing one or more of its contractual obligations if, and to the extent that, the party who suffers the event feels:

• a) that such impediment is beyond its reasonable control;
• b) the event could not reasonably have been foreseen at the time of the conclusion of the contract;
• c) that the effects of the impediment could not reasonably have been avoided or overcome by the Interested Party.

7. 2. Where a party fails to perform one or more of its contractual obligations because of the non-performance of a third party, entrusted by the party to perform all or part of the contract, that party may invoke force Majeure only to the extent that the requirements of paragraph 1 are met by both the party and the third party.

7.3. In the absence of proof to the contrary, the following events suffered by a party shall be presumed to satisfy the conditions of paragraph 1 of this clause and that party shall only have to prove the existence of the condition in paragraph 1.

• a) war (whether declared or not), hostilities, invasion, acts of a foreign enemy, extensive military mobilisation;
• b) civil war, riot, rebellion, revolution, military force or usurpation of power, insurrection, acts of terrorism, sabotage or piracy;
• c) currency or trade restrictions, embargoes, sanctions;
• d) acts of authority, whether lawful or unlawful, compliance with laws or governmental orders, regulations, expropriation, confiscation of property, requisition, nationalisation;
• e) plague, epidemic, natural catastrophe or extreme natural events;
• f) explosion, fire, destruction of equipment, prolonged suspension of transport, telecommunications or power;
• g) generalised social conflicts, such as, in particular, boycotts, strikes and lock-outs, white strikes, occupation of factories and buildings.

7.4. The Interested Party shall notify the other party without delay of the occurrence of the event.

7.5. The party who successfully invokes this Clause shall be released from its obligation to perform its contractual obligations, from any liability for damages or other contractual remedy for non-performance, from the time the event inhibits the performance of its contractual obligations, provided that it has been notified without delay. If notice of the event has not been given promptly, the release takes effect from the time when the notice reaches the other party. The other party may suspend performance of its obligations, if any, from the date of the notice.

7.6. If the effect of the impediment or event invoked is temporary, the consequences referred to in paragraph 5 shall occur only to the extent and for as long as the impediment or event invoked prevents the interested Party from performing its contractual obligations. The Interested Party shall inform the other Party as soon as the impediment ceases to prevent the performance of its contractual obligations.

7.7. The Interested Party shall take all reasonable steps to limit the effects of the invoked event on the performance of its contractual obligations.

7.8. If the duration of the invoked impediment has the effect of substantially depriving one or both parties to the contract of what they could reasonably expect under the contract, each party shall have the right to terminate the contract by giving notice to the other party within a reasonable period. The parties agree that, unless otherwise agreed, the contract may be terminated by either party if the duration of the impediment exceeds 120 days.

7.9. If paragraph 8 applies, and one of the parties has derived a benefit from the performance of the contract before its termination, it will be obliged to compensate the other party for the value of that benefit.

8. GUARANTEES

8.1. Ekinex S.p.A. guarantees the conformity of the Ekinex® products with the legislation and technical standards in force in the EEC.

8.2. Ekinex S.p.A. guarantees that the quality and type of the delivered products correspond to the contract and that they are free from defects that could make them unsuitable for the use for which they are intended. The guarantee for construction defects is limited to those defects of the products that are attributable to defects in the material used or to design and construction problems attributable to Ekinex S.p.A. All Ekinex® products sold by Ekinex S.p.A. are covered by the warranty for good functioning and the warranty for defects and/or faults in design and manufacture for a period of 24 months and therefore also in accordance with the Consumer Code if the end user is a consumer.

8.3. The warranty operates from the date of delivery of the goods by Ekinex S.p.A., except for the parts that are subject to normal wear and tear. After the expiration of this period, the warranty ceases, even if the products have not been put into operation for any reason at the end user. Please note that the warranty on the products purchased from Ekinex S.p.A. is subject to the full payment of the products.

8.4. The above mentioned warranty is effective on condition that the products have been stored and used in accordance with the instructions in the General Catalogue and the technical data sheets provided by Ekinex S.p.A., that no repairs, modifications or alterations have been carried out without the prior written consent of Ekinex S.p.A. and that the defects found have not been caused by chemical or electrical agents.

8.5. The Purchaser shall report any defects in writing no later than 8 days after the delivery of the products, while the report of any hidden defects and/or operating defects (that can only be detected after the use of the product) must be made within 8 days after the discovery of the defect. The warranty does not apply in the event of malfunctions of the software installed on the Product, which are due to overloads, electrical phenomena due to atmospheric events, interruptions and/or suspensions of electricity.

8.6. The notification of defects, including hidden defects, must be made in writing to Ekinex S.p.A. by sending a communication to support@ekinex.com within the prescribed period, indicating:

8.7. If the purchaser does not allow Ekinex S.p.A. to carry out any reasonable checks as requested by Ekinex S.p.A. and does not return the defective products to Ekinex S.p.A. within 60 days after delivery, the warranty right is forfeited. In order to return the defective products, Ekinex S.p.A. shall, unless otherwise agreed, collect the defective material at its own expense according to the instructions on the day and place agreed upon by the parties. After the return, the defective products shall become the exclusive property of Ekinex S.p.A.. After the expiration of the above mentioned terms, Ekinex S.p.A. shall consider the latter as forfeited from the warranty and therefore invoice the products sent to replace the defective ones and consequently request the payment of the same.

8.8. Ekinex S.p.A., subsequent to the activation of the warranty and in execution of the customer’s simultaneous right, may at its sole discretion:

• a) supply free of charge at the Buyer’s premises (DAP Incoterms 2010) products of the same type (or equivalent) and quantity as those found to be defective, subject to the return by the Customer of the replaced products under the terms and in the manner previously indicated in paragraph 7.7;
• b) repair the defective products if Ekinex S.p.A. does not find the necessity or urgency for an immediate replacement of the same;
• c) issue a credit note in favour of the Purchaser for an amount equal to the value indicated on the invoice of the returned products.

9. INDUSTRIAL PROPERTY

9.1. Ekinex S.p.A. remains the exclusive owner of the patents, drawings, projects and everything used for the manufacture of the Products, which the Purchaser therefore undertakes not to hand over to third parties, reproduce or use. If the manufacture of the Products is carried out by Ekinex S.p.A. upon the specific request and technical documentation of the Buyer, Ekinex S.p.A. shall not assume any responsibility for the infringement of industrial property rights of third parties, which shall instead be the exclusive responsibility of the Buyer, who undertakes to guarantee and keep Ekinex S.p.A. indemnified and unharmed against any claim made against it.

9.2. The Purchaser undertakes to use the trademarks of Ekinex S.p.A. only for the purpose of identifying, advertising and selling the Products, and shall refrain from depositing them or having them deposited without the prior written consent of Ekinex S.p.A.

10. TERMINATION AND WITHDRAWAL

10.1 The buyer, in accordance with article 1454 of the Italian civil code, must give Ekinex S.p.A. a written notice to comply with the contract within a period of time that is not less than 30 days, before acting to terminate the contract due to non-fulfilment. If Ekinex S.p.A. has started to perform within this period, the buyer shall not be able to terminate the contract. (A termination period for Ekinex may also be included, but the termination for non-payment may be decided on the basis of the obligations imposed on the customer in addition to the payment).

10.2 Both parties may withdraw from the contract, however in addition to the provisions of Italian law Ekinex S.p.A. may also withdraw from the contract in the event of a force majeure event as specified in Article 7 of the general terms and conditions of sale prepared by Ekinex S.p.A.. Both parties must therefore communicate their intention to withdraw from the contract by registered letter or certified email and the withdrawal will take effect from the date of receipt of the communication.

11. COMPENSATION FOR DAMAGES

11.1. The liability of Ekinex S.p.A., whether arising from the execution or non-execution of the contract, from the warranty, from an illegal act or from an objective liability, shall not in any case exceed the value of the product to which this liability relates. Under no circumstances shall Ekinex S.p.A. be liable for loss of profit or loss of use or downtime of the product or any associated machinery, for claims by the Buyer and/or third parties relating to the aforementioned damages or for any other indirect or consequential damages.

12. CONFIDENTIALITY

12.1. The Purchaser agrees to (i) treat the information/data/documents/know how/documents received and/or learnt from Ekinex S.p.A. as confidential, (ii) limit the use of such confidential information/documents and the access to them for purposes related to the execution of the contract. Confidential information/documents may not be reproduced without the prior written consent of Ekinex S.p.A., and all copies of such information/documents shall be immediately returned upon request by Ekinex S.p.A.. The above provisions do not apply to information that: (i) is public or becomes public other than by disclosure by the Buyer, its employees or collaborators, or (ii) was in the possession of the Buyer before it was received by Ekinex S.p.A. or (iii) was disclosed by sources that are not subject to the restrictions to which the Buyer is subject regarding its use, or (iv) can be disclosed to third parties based on a written authorization of Ekinex S.p.A.

13. APPLICABLE LAW AND PLACE OF JURISDICTION

13.1. These General Conditions and the related supply contracts shall be governed by Italian law. The Court of Novara shall have exclusive jurisdiction over any dispute relating to or in any case connected to the contracts to which these General Conditions apply.

14. COVID-19 CLAUSE

14.1 By signing this deed, the Purchaser declares that he is aware that the epidemiological emergency in progress due to the spread of the Coronavirus (Covid-19) and the regulations adopted to combat the aforementioned pandemic could have an effect on the fulfilment and execution of orders placed with Ekinex S.p.A.

14.2 Ekinex S.p.A. reserves the right to extend the terms, apply additional costs or amend these general terms and conditions of sale in the event that the condition referred to in the previous point occurs, after notifying the Purchaser. 

15. CONTACTS

15.1 Indicate Ekinex’s contact details + addresses for any communications. 

16. VEXATIOUS CLAUSES

16.1 The customer expressly declares that he/she accepts and approves in accordance with articles 1341 and 1342 of the Civil Code the following clauses: 2. Applicable law and competent court; 5. Terms of payment; 6. Transport and delivery of products; 8. Guarantees; 10. Applicable law and competent court; 13 Covid-19 clause.