GENERAL TERM AND CONDITIONS OF SALE

1) DEFINITIONS

1.1) In this Contract, the words, whether in capital letters, shall have the following meanings:

• “Client”: the person (whether consumer or not) who purchases ELIOS Products;
• “GCS”: these General Terms and Conditions of Sales;
• “Consumer”: natural person who purchases Products as final user, or who acts for purposes not related to his business, commercial or professional activity;
• “Order Confirmation”: the communication by ELIOS to Clients, summarizing all the features agreed upon by the Parties with regards to specific Products supply;
• “Contract”: the purchase Contract between ELIOS and a Client;
• “ELIOS”: the company ELIOS Sub, with its registered office in Cattolica (RN) at via Cattaneo n. 5 – Italy, VAT N.03667520401;
• “Products”: the products sold by ELIOS;
• “Order”: the purchase order of Products from a Client to ELIOS.

2) SCOPE OF APPLICATION AND EXECUTION OF THE CONTRACT

2.1) These GCS apply to any Contract entered into between ELIOS and a Client, whether said Contract specifically refers to these GCS;

2.2) The Contract shall be deemed to have been entered into at the time ELIOS sends its written Order Confirmation to the Client, for instance via email, following the Client having sent the Order through the eliossub.com website;

2.3) Should the Order Confirmation contain provisions that contrast with these GCS, the former shall prevail;

3) PRICES AND METHODS OF PAYMENT

3.1) Products price shall be the one stated in the Order Confirmation. Prices are intended as being net of VAT, if applicable;

3.2) The prices do not include services and charges not expressly mentioned in the Order Confirmation. The prices do not include, besides, shipment costs, which will be indicated apart in the Order Confirmation;

3.3) Payments shall be made in advance within and no later than 7 (seven) days from the date when the Order Confirmation is sent by ELIOS;

3.4) Payments shall be made by credit card or bank transfer to the bank current account indicated to the Client by ELIOS in the Order Confirmation or on the website eliossub.com. Payment is deemed to be made when the respective sum is at disposal of ELIOS;

3.5) In case of delay in payment, without the need for previous levy of execution, Client shall be held to pay ELIOS interest on arrears, pursuant to Italian Legislative Decree n°. 231/2002 “Bringing into effect directive 2000/35/CE related to the fight against late payment in commercial transactions”. The above-said interest shall be calculated from the due date of the term of each payment and for the entire period of delay;

3.6) Should payment delays exceed 10 (ten) days, ELIOS shall have the right to terminate the Contract with immediate effect and to demand further compensation for damages.

 

4) DELIVERY TIME

4.1) The delivery time is as stated in the Order Confirmation.

4.2) The delivery time is determined on the basis of the time estimated to be necessary for manufacturing the Product, and it will be different with regards to different Products (depending if the Product consist of “tailored wet suit” o “standard wet suit”), and may be extended by ELIOS, if necessary;

4.3) The Client agrees to waive any claims for damages and agrees not to cancel the Order in the case of delays of less than 60 (sixty) days from the term stated in the Order Confirmation;

4.4) In case of delay in delivery, for reasons attributable to ELIOS, exceeding 60 (sixty) days, the Client may demand, with previous levy of execution in writing, a compensation for damages suffered, up to the maximum amount of 5% (five percent) of price of Products delivered late. Except in case of fraud or gross negligence, the payment of the amounts stated in this clause 4.4 excludes any further responsibility for damages and/or claim in connection with delayed deliveries;

4.5) Should the Client, during the carrying out of the Contract, request that integrations or modifications be made to the list of the ordered Products, ELIOS shall have the right to extend the delivery time of the entire supply.

 

5) PACKAGING

5.1) The Products shall be packed and made ready for delivery with the ordinary care and techniques required by their nature, with the protection necessary for normal transport conditions;

5.2) Any special packaging or additional services must be specifically requested by the Client with the costs for the same being exclusively on the charge of the latter.

 

6) DELIVERY TERMS – SHIPMENTS AND TRANSFER OF RISK

6.1) Unless otherwise provided for in the Order, the delivery term is always intended as being EX WORKS – INCOTERMS 2010 – ICC- ELIOS premises;

6.2) ELIOS shall manage shipments which shall always be carried out on behalf of, and at the risk of the Client, with the means of shipment considered by ELIOS to be the most suitable; the Products shall always travel at Client’s risk. Thus, from the delivery to the carrier/forwarding agent, all risks and costs related to the Products shall be borne exclusively by the Client. ELIOS shall NOT be liable for delays, errors, losses and damages related to shipment, regardless of the means used.

 

7) RIGHT TO SUSPEND PERFORMANCE

7.1) Should the Client fail to make payment within the terms agreed, ELIOS shall be entitled to refuse to deliver the Products until such time as they have been paid for in full;

7.2) In addition, ELIOS shall be entitled to refuse to deliver Products where the Client’s asset-related or financial position poses evident risk in terms of receipt of payment.

 

8) WARRANTY – REPORTING FAULTS AND DEFECTS

8.1) ELIOS guarantees to the Consumer that the Products shall conform to the technical specifications specified in the Order and thus shall be free from faults and defects;

8.2) ELIOS warrantees the Products supplied for 24 (twenty-four) months from the delivery date in case the Client is a Consumer, otherwise 12 (twelve) months;

8.3) This warranty does not cover Product parts subject to normal wear or any consumable materials supplied;

8.4) The warranty, pursuant to this clause 8, shall immediately become void in the case of:

i. Repairs on the Products not carried out by ELIOS authorised personnel;
ii. Tampering, disassembly, bad or erroneous use, bad or erroneous maintenance and/or storage of the Products and failure to comply with the guidelines set out in the instruction and maintenance manual supplied together with the Product;
iii. Use of spare parts not supplied by ELIOS;
iv. Late payment on the part of the Client of sums due to ELIOS;

8.5) The Client must inspect the Products purchased within the shortest possible time and, in all cases, must report any faults and/or defects to ELIOS, by fax, with follow up confirmation to be sent by registered letter with return receipt within a maximum of 8 (eight) days from the receipt of the Products, or from the discovery of faults, in the case of non-evident faults. It is understood that claims or objections do NOT entitle the Client to suspend or delay payments;

8.6) The Products shall be recognized as being faulty and/or defective only once ELIOS has ascertained and confirmed the existence of the fault and/or defect;

8.7) Except in circumstances of fraud or serious fault, under no circumstances shall ELIOS be held to provide compensation for direct or indirect damages of any kind deriving from the Products;

8.8) This warranty replaces and excludes any other warranty provided for by law, or otherwise, and defines all the rights of the Client with regards to Product defects and/or faults.

 

9) REPLACEMENT AND REPAIR UNDER WARRANTY

9.1) The warranty covers, at the sole discretion of ELIOS:

i. Repair of Products acknowledged to be defective and/or faulty; or
ii. Replacement of Products acknowledged to be defective and/or faulty where repair is not possible or where ELIOS considers it inappropriate; or
iii. The reimbursement of the sum paid by the Client;

9.2) ELIOS shall NOT be liable for any additional charges or services other than those specified in clause 9.1 above;

9.3) Products replaced must be returned to ELIOS, at Client’s charge, within 30 (thirty) days from the request of replacement.

 

10) EXEMPTION FROM LIABILITY

10.1) ELIOS shall NOT be responsible for any direct or indirect damages to the Consumer or to persons/things/animals that occur in connection with the incorrect use and/or assembly of the Products, inadequate maintenance or repairs carried out by non-authorized technical personnel;

10.2) ELIOS shall NOT be responsible for any accidents or damages to the Client or to third parties that occur at the time of, or during, Product loading, unloading, assembly or installation procedures.

10.3) The Client expressly exonerates ELIOS from any liability pursuant to clauses 10.1 and 10.2, being obliged to hold it entirely indemnified and blameless.

 

11) FORCE MAJEURE

11.1) ELIOS shall NOT be responsible for failure to comply with any of its obligations should this be due to reasons of force majeure. Examples of events which constitute circumstances of force majeure include wars, earthquakes, civil unrests, fires, floods, interruptions in power supplies, strikes and serious difficulties in obtaining supplies;

11.2) If the cause of force majeure persists for a period exceeding 3 (three) months, the Client shall be entitled to terminate the Contract.

 

12) RIGHT OF WITHDRAWAL

12.1) In the Contracts executed with Consumers, before Products have been shipped, the Consumer may exercise his/her right to withdraw, without penalty, communicating such withdrawal from the Contract by email within 14 (fourteen) days from the date the Contract has been entered into;

12.2) After Products have already been shipped, the Consumer may exercise his/her right to withdraw, communicating such withdrawal within 14 (fourteen) working days from the date the Products have been received, by means of registered letter with return receipt. Such notice may also be sent, within the same time limit, by telegram, fax and/or email, providing that it is confirmed by registered letter with return receipt within the following 48 (forty–eight) hours;

12.3) The abovementioned notice must contain:

a. The will to withdraw from the contract;
b. The details necessary to identify the Order with;
c. The details of the Product / Products relative to which it is intended to exercise the right of withdrawal;

12.4) The right of withdrawal shall be deemed to have been correctly exercised when all the following conditions have been complied with:

i. The notice is been sent to ELIOS pursuant to this clause;
ii. The notice contains the details pursuant to this clause;
iii. The Products have not been used, modified and/or damaged;
iv. The Products shall be returned in their original packing;
v. The Products shall be sent to ELIOS in a single shipment within 15 (fifteen) days from receipt of the Products on the part of the Consumer. ELIOS reserves the right to refuse to accept back articles from the same Order that are returned and shipped at different times;

12.5) Immediately upon receipt of the Products, pursuant to previous clause, and providing that the right to withdraw has been correctly exercised, ELIOS shall:

a. Notify the Consumer by email as to receipt of the returned Products;
b. Reimburse the Consumer for the amounts paid as purchase price within 30 (thirty) working days starting from the date on which ELIOS has become aware of the Consumer exercising his/her right of withdrawal;

12.6) The actual time for the re-credit or return of the amounts pursuant to previous clause may vary according to the credit/debit card used and therefore ELIOS shall not be held responsible for any delay in re-crediting. In all cases, the actual date on which the amount shall be re-credited shall be the same as the debit date, hence the Consumer shall not bear any losses in terms of bank interest. The above-referred reimbursement shall be made by ELIOS to the party that made the payment, regardless if he/she is not the recipient of the Products;

12.7) The only costs to be borne by the Consumer for exercising his/her right of withdrawal, pursuant to this clause 12 shall be those of returning the Products to ELIOS;

12.8) Should the Consumer NOT have exercised his/her right to withdraw in compliance with the provisions of clause 12, ELIOS shall inform the Consumer of the same by email. In this case the Consumer may choose, communicating his/her decision to ELIOS via email, to have the Products purchased returned to him/her at his/her own cost; should the Consumer not be interested in this option then ELIOS reserves the right to retain the Products and the corresponding amount paid for the purchase of the same.

 

13) WRITTEN FORM

13.1) Any modification or exception to these GCS or to a Contract must be approved of in writing by the Parties.

 

14) GOVERNING LAW

14.1) These GCS and each Contract entered between the Parties shall be governed by Italian law and shall be interpreted on the basis of the same. The 1980 United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

 

15) SETTLEMENT OF DISPUTE

15.1) Except for that provided for by mandatory regulations in favour of the Consumer, any disputes arising from, or in connection with, a Contract and/or these GCS (including those related to its validity, interpretation, carrying out and non-fulfillment) shall be exclusively submitted to the Court of Rimini – Italy.

According to artt. 1341 and 1342 of the Italian Civil Code DISTRIBUTOR declares to have expressly acknowledged and accepted the following clauses:

2) “Scope of application and execution of the Contract”;
3) “Prices and methods of payment” (clause 3.6);
4) “Delivery time” (clauses 4.2 – 4.3 – 4.4);
6) “Delivery terms – Shipments and Transfer of risk” (clause 6.2);
7) “Right to suspend performance”;
8) “Warranty – Reporting faults and defects” (clauses 8.4 – 8.6 – 8.7 – 8.8);
9) “Replacement and repair under warranty” (clauses 9.2 – 9.3);
10) “Exemption from liability”;
12) “Right of withdrawal”(clauses 12.4 – 12.8)
14) “Governing law”;
15) “Settlement of dispute”.