- Validity Of The General Conditions Of Sale
These General Terms and Conditions of Sale (hereinafter, the “GCS”) apply to, and form an integral part of, any and all purchase orders and/or of any and all sales and/or supplies of HERO products, that are sold / supplied by HERO Europe S.r.l. (hereinafter also referred to as “HERO” or the “Manufacturer”). These GCS are binding for the customers who purchase any HERO products. All purchase orders are subject to the Manufacturer’s acceptance. None of the agents, distributors, dealers or resellers of HERO are entitled to negotiate on the Manufacturer’s behalf, nor do they have any authority to make contracts in the name of the Manufacturer.
HERO will not accept different or additional conditions than the present GCS, even if indicated in the customer’s purchase orders or in other documents, forms or electronic transmissions whatsoever, issued by (or on behalf of) the customer, which are without effect.
These GCS do not entail the constitution of any right of exclusivity in favour of the customers, that is expressly excluded, unless otherwise agreed in writing between the parties, nor any constraints of sale or supply, for the Manufacturer (who remains free to accept or refuse any orders).
The GCS in force at the time of the order, are an integral part of all purchase / supply orders of HERO products that are sent to the Manufacturer, with regards to tinting equipment, tinting systems, dispensers and other products manufactured by HERO Europe Srl and/or their components and spare parts (hereinafter, the “Products”), as well as of all sale / supply agreements of such Products, which may be entered into with the Manufacturer, unless otherwise agreed in writing by the parties. Any derogations and/or variations to these GCS (and/or to any provisions set forth in these GCS) are valid and effective only if made in writing and undersigned by the Manufacturer. Any waiver and/or modifications and/or derogations to these GCS (and/or to any provisions herein set forth) that have not been accepted in writing and duly undersigned by the Manufacturer are ineffective, null and void.
- Conclusion Of The Contract
The customer’s order is deemed to be an irrevocable offer under article 1329 c. c. (Italian civil code), that is valid and effective and that cannot be revoked or withdrawn for a period of 90 (ninety) days from the date upon which the order is received by the Manufacturer. Any order is subject to the Manufacturer’ acceptance, that may occur: i) through a HERO’s written order confirmation; or ii) through the beginning of the performance of the contract to be concluded (this moment coincides with the start of the production or, in the case of Products that have been already manufactured, with the notice of goods ready to be delivered, sent by the Manufacturer to the customer, and/or with the delivery of the Products), under article 1327 c.c. (Italian civil code). In this event, no warning of the beginning of the performance of the contract is required; and in any event, iii) after ninety (90) days from the date upon which the order is received by the Manufacturer, unless a written refusal of the order is transmitted by the Manufacturer to the customer, within the abovementioned term of ninety (90) days from the receipt of the order.
In the event that an offer is sent by the Manufacturer, the relevant written confirmation, sent by the customer (provided that the confirmation is corresponds to HERO’s offer), shall be considered as a customer’s purchase order, which is subject to HERO’s acceptance, according to the provisions above.
The approximate term of delivery of Products is sixty (60) working days, from the date of conclusion of the contract, according to article 2 above. Delivery will be Ex-Works (Incoterms TM 2010), at HERO’s premises, in Salmour (CN) Italy – Via Bricco 1, 12040.
Delivery dates, even if accepted by the Manufacturer, are merely indicative. Customer may not withdraw or cancel any order, nor is it entitled to any claims towards the Manufacturer (including claims for compensation of direct or indirect damages or stop production or otherwise). The customer undertakes in any event to collect and to pay HERO for all Products ordered, which have been delivered by HERO according to the provision above.
The Manufacturer reserves the right to cancel and/or to annul any orders, even if they have already been accepted, by simple written notice transmitted to the customers, or, in any case, not to carry out, in whole or even only in part, any order, upon occurrence of any of the following circumstances: i) when HERO may reasonably consider that there may be violations of confidential information and/or of its know-how and/or of HERO’s industrial or intellectual property rights and/or any act of unfair competition against the manufacturer; or ii) when required as a result of technical or productive reasons; or iii) in the case any amount payable to the Manufacturer is not paid, in whole or even only in part, within the agreed term, or upon the occurrence of any other breach of the customer (even if related to previous or different orders than the one in progress), or when HERO deems, at its sole discretion, that the customer does not have adequate financial capacity to meet its obligations (in this case, HERO shall also be entitled to request any appropriate measure, such as the provision of guarantees and/or of letter of credit, prior to the acceptance of the order, or also subsequently, prior to delivery). Art. 1460 c.c. (Italian civil code) applies.
- Retention Of Title
HERO Europe S.r.l. will retain the title to the Products which have been supplied by the Manufacturer, until the full payment
of the Products by the customer has been received by HERO.
- Collection Of Products
The customer undertakes to collect all ordered Products, delivered by HERO under article 3 above. The Customer shall collect the Products within thirty (30) days from the receipt of the notice of goods ready sent by the Manufacturer. After that date, in the event that the customer does not collect the Product, HERO will invoice to the customer a daily fee for the storage of uncollected Products equal to 50 €/ day, for each Product that has not been collected by the customer, until they are collected by the customer. In the event of a total or partial refusal of the customer to receive or collect the Products and/or however in the event the Products are not collected by the customer after 45 (forty-five) days from the receipt by the customer of the notice of goods ready sent by the Manufacturer and/or in the case of any breach by the customer of any obligations towards the Manufacturer (including, for instance, and without limitation, any customer’s request for the withdrawal or cancellation of purchase orders transmitted to HERO, delay of payment of any amounts payable to the Manufacturer, etc.), in addition to the above, the Manufacturer will be entitled to the termination with immediate effect of the contract, pursuant to article 1456 c.c. (Italian civil code). In this case, the Manufacturer is entitled to the payment by the customer of a penalty equal to 45% (forty-five percent) of the total value of the order (this is in addition to the daily fee for storage of uncollected goods above mentioned), without prejudice to further damages. The Manufacturer is also entitled to retain any amounts paid by the customer with regards to the payment of the penalty above mentioned (including, for example, and without limitations, any advance payment or down payments of the customers). The customer expressly waives any right to penalty reduction under article 1384 c.c. (Italian civil code), acknowledging the fairness of the penalty agreed upon. In the event of termination, the Manufacturer may freely dispose of the Products that had been ordered by the customer.
- Prices – Payments
Prices of Products (including the prices that are set forth in HERO’s Price Lists and/or in the possible offers sent by the Manufacturer to the customer) are Ex Works (Incoterms TM 2010) – HERO’s premises, Salmour (CN) Italy, and are net of VAT (which must be added, if due and to the extent of the law, to the prices above indicated). Payments must be made in the currency of HERO’s invoice and in accordance with the conditions indicated on the invoice. Anything that is not expressly indicated in the offer and /or in the acceptance (order confirmation) sent by the Manufacturer must be considered as not included, and therefore will be charged to the customer (in particular, for example, and without any limitation, the customer will be charged for the transport costs, insurance costs, expenses, duties, taxes, and other charges related to the Products and/or its transportation, shipping and delivery, including any charges, taxes, customs fees, the costs for customs formalities in general, and all costs for customs clearance, import and/or export taxes, and any other duties, costs, expenses which are not listed in the HERO’s offers / order confirmations above mentioned). The customer must pay the total amounts indicated in the Manufacturer’s invoices, without making any deduction or reduction.
The terms for payment are those set out in the offer and /or in the acceptance (order confirmation) sent by the Manufacturer.
The Products must be paid for to the Manufacturer by the customer as follows: 30% advance payment, at the moment of the order, against HERO’s invoice; the remaining 70% prior to the delivery, upon the receipt of the notice of goods ready to be delivered sent by HERO, against HERO’s invoice, unless otherwise agreed in writing by the parties. The delivery of the Products is subject to the prior full payment of the price of the Products, according to the agreed payment terms (also for what regards the advance payment).
The customer shall not suspend, avoid or delay any payment due, nor reduce in any way the amounts due, raising exceptions or proposing any kind of actions. The customer must in any case provide for the full payment, before raising or proposing any exception or action whatsoever.
- Delay Of Payments
In the event of delay of payment of any amount payable to the Manufacturer, default interest shall be due under the Italian Decree n. 231/2002 (or in greater extent, under applicable law), without prior written notice, and this is in addition to reimbursement of all expenses incurred by the Manufacturer (including lawyers’ fees). Without prejudice to the foregoing, in the event that any amount payable to the Manufacturer is not paid, in whole or even only in part, within the agreed term, the Manufacturer may, at its sole discretion (even cumulatively): i) ask for immediate payment of the entire amount, under article 1186 c.c. (Italian civil code); ii) suspend deliveries of the Products until full payment; iii) terminate the contracts, with application of the penalty set forth under Article 5, above, without prejudice to any right for compensation of greater damages. The remedies above apply even if unpaid amounts relate to prior or different sales or supplies, which are destined to the same customer, being all purchase orders of the Products subject to the condition of the full and integral payment of all amounts payable to the Manufacturer, even if related to different orders/supplies, within the agreed terms (the Manufacturer may waive such condition that has been agreed in its own interest, by sending the other party a communication in writing). The foregoing is without prejudice to any right of the Manufacturer to obtain the full compensation of all damages.
- Manufacturer’s Warranty – “Premium” Contract
- TERM OF WARRANTY
HERO Products are covered by the Manufacturer’s warranty (the “Standard warranty” or “Warranty”). The Standard warranty is effective for a period of twelve (12) months as of the date of the first installation of the Product, but in any event it cannot exceed a maximum duration of fourteen (14) months from the date of the delivery, by the Manufacturer, of the Product to the first purchaser who purchased such Product directly from the Manufacturer (in the event the expiration of this term of 14 months from delivery falls before the end of the twelfth month from installation). That is to say, the Standard warranty expires and ceases, in any event, upon the first of the two dates above indicated. Under this Article 8.1 the term “first installation” means the date of the first activation of the license of the software “TintWise™”. Interventions (if any) on Products are directly carried out by the Manufacturer or, by Services which are authorized by the Manufacturer, at HERO’s choice.
- DEFECTS COMPLAINT
The customer must give notice to the Manufacturer of any alleged vices or defects or non-compliance of Products (hereinafter, collectively referred to as the “Defect”) within eight (8) days from the date the Defect occurred, but in any event before the date of the expiration of the Standard warranty, as indicated under Article 8.1 above, by e-mail at the following e-mail address: [email protected], specifying the nature of the alleged Defect, otherwise it loses its right to rely on the Defect. Moreover the notice of Defect above mentioned must specify the model and the serial number of the Product to which the claim of warranty coverage is requested. The warranty period definitively expires and ceases upon the expiration of the term indicated under article 8.1 above.
HERO reserves the right to carry out any appropriate check and verification of the effectiveness of the Standard warranty, and whether the requested intervention is covered or not by Warranty. To this end, the Manufacturer before the requested intervention is carried out, may make any check and verification (even at the customer’s premises), that is reputed as necessary or opportune, by the Manufacturer itself. Such checks and verification may be carried out by the Manufacturer both directly (through its technicians) or by means of authorized Services, as well as the Manufacturer may request all necessary information from the customer, who undertakes to cooperate with HERO.
- SCOPE OF THE WARRANTY
The Standard warranty is limited to the Products that have been manufactured by HERO and that have been purchased by the customer, directly from HERO (and that have been, moreover, fully paid to the latter). Standard warranty is effective, in any event, within the limits set forth in these GCS, provided that: a) the Product has been correctly installed; b) the Product is correctly used and maintained by the customer, in accordance with the User Manual (provided to the customer, by the Manufacturer). Furthermore, no interventions, modifications, repairs, replacements must have been carried out on Products, by technicians or services which have not been previously authorized by HERO.
- INTERVENTIONS WHICH ARE NOT COVERED BY WARRANTY
The following interventions are expressly excluded from the Manufacturer’s Warranty and outside the scope of the Warranty, and therefore they will be at the sole charge of the customer:
- Damages caused by incorrect use of the Product (meaning as such, for instance, and without limitation, any use of the Product which does not comply with HERO’s User Manual, such as in the event of any downtime for more than 36 hours (that is to say, in the event the Product is off from the electricity supply), any use of colorants or paint base having characteristics which do not comply with HERO’s User Manual; failure to comply with the maximum and / or minimum filling level indicated on the sticker inside the cover of the mixing equipment; operating at a temperature which is not included within the range of limits which are indicated in HERO’s User Manual; using colorant or paint base, and/or any other element other than those used and tested during the installation; any other case of incorrect or non-compliant use of the Product);
- Damages caused by overuse of Product (or its parts or components);
- Damages deriving from the livening or hardening of colorants or paint base;
- Damages deriving from external causes (e.g. voltage fluctuations, electrical discharges, catastrophic natural events, rats, etc.);
- Malfunction of electrical outlets, connectors and/or cable assemblies (which are external with respect to the Product);
- Fuse breaks;
- Cleaning of equipment or canisters;
- Damages deriving from the cleaning of equipment or canisters caused by using products or substances other than those indicated in the HERO User Manual;
- Filling of circuits;
- Damages resulting from spilling of colorant;
- Adjustment of sensors (other than factory settings);
- Malfunctioning caused by insufficient or incorrect cleaning of Product or relevant canisters (to which is equated any violations of the provisions set forth in HERO’s Users’ Manuals);
- Broken, defective or malfunctioning of personal computers or hardware and accessories in general (even if the personal computer has been supplied by the Manufacturer: for instance, without any limitations, printers, scales, UPS); in such cases, terms and conditions of the manufacturer of such personal computer, hardware, accessories, apply);
- Damage caused by vandalism;
- Damages caused by carelessness.
Upon the occurrence of any of the circumstances listed above, or in any other event that intervention is not covered by the Standard warranty, the Manufacturer will invoice to the customer: the working hours of technicians involved, the spare parts / components used during the intervention (including the costs for their transport), at the prices / rates as set forth in HERO Price Lists, and all travel, meal, hotel costs and expenses related to the intervention. In the event that HERO should decide to carry out the intervention (directly or through authorized Service) at customer’s premises, the Product must be easily accessible from all sides and directions, in order to permit the work of technicians. If the Product is not available, unless the customer gave the Manufacturer prior written notice of such circumstance, at least three days before the date of the intervention agreed upon by the parties, such intervention will be invoiced to the customer, in accordance with HERO’s Price List.
- WARRANTY COVERAGE
In the event of Defects regarding the Product which are covered by the Manufacturer’s Warranty (hereinafter, also referred to as “Warranty”), within the period of validity as indicated under article 8.1, above, and provided that also the term set forth under article 8.2 above has been met, HERO shall carry out: (a) repair or replacement of parts or components with factory defects. The intervention may be performed, at HERO’s choice, at the Manufacturer’s premises (Salmour- CN), after the part or the component to be replaced or repaired is sent to HERO (at customer’s expenses), or otherwise, at the customer’s premises, in the event the Manufacturer should decide in this sense. Furthermore the Manufacturer may decide whether to perform the requested intervention directly or through its authorized external Service. The parts or components that are replaced must be promptly delivered to HERO (or, to the authorized Service, that has been entrusted with the intervention), by the customer, and in any way within 30 (thirty) days from the date upon which the Manufacturer has received notice of the alleged defect, under article 8.2 above. The costs for shipping parts or components which are allegedly defective to the Manufacturer will be fully charged to the customer. Within 45 (forty-five) days from the receipt of the part or component that has been replaced or repaired, the Manufacturer shall analyse these parts or components that have been repaired and/or replaced, and the causes which are at the basis of the alleged Defect. The assessment of the conditions for the possible operation of the Warranty is reserved solely to the Manufacturer. If the part or component is reputed by the Manufacturer as not being defective, HERO will invoice to the customer the price of the intervention carried out, as well as the cost of the spare parts used for such intervention (including the relevant costs for the transport of spare parts), and all the expenses for travel, hotel and meals for the HERO’s technicians or the Service’s technicians to whom the intervention is entrusted. The payment must be made within 30 days from the date of the relevant invoice sent by HERO.
The Customer acknowledges and agrees that, for each interventions related to Products, an External Intervention Form will be filled in by HERO’s technicians (or by Authorized Service’s technicians), and that through such Form, the Customer (or the user, if other than the Customer) will confirm that he is aware of the above and, in particular, of the fact that, in the event of technical interventions which are not covered by Warranty all costs related to such intervention must be fully paid (within the terms specified in HERO’s invoices). The External Intervention Form, even if undersigned only by the user (who is different from the Customer), will be fully binding also fort the Customer (and vice versa). In the case that the External Intervention Form is not undersigned by the Customer or by the user (if different from the Customer), the intervention shall be deemed as authorized by the Customer and by the user (if different from the Customer), unless a written denial of consent to the intervention is inserted in the External Intervention Form, and duly undersigned by the Customer (or by the user, if different from the Customer). In this event, the unauthorized intervention will not be carried out.
The Standard warranty does not cover, inter alia: a) travel expenses (including motorway tolls, mileage allowances of travel costs, from HERO’s headquarters or, from the Service’s headquarters, to customer’s headquarter or, if different, to the place where there is the Product, and back, as well as any other trips required by the intervention), which will be invoiced to the customer (only accommodation expenses, room and board will not be invoiced). For warranty work to be performed in Italy (excluding islands), a mileage fee of 0,60 € / km will be charged (subject to adjustment by HERO, that will be communicated to customers, in the event of fuel cost increases), up to a maximum distance (one way) of 400 km from HERO’s headquarters (or from the Service’s headquarters). For distances greater than 400 km (one way) and / or for the islands, or in the event of interventions to be carried out in other countries, it will be formulated by HERO, from time to time, a special offer in relation to the costs to be refunded; (b) the costs for transport of spare parts and materials, from HERO to the customer (and vice versa).
The replacement of USB cables, the covers of baskets of machines Archimedes model and/or of PCP pumps or other easily replaceable parts, which do not require the need for specialized technicians, will be made directly by the customer, even in the period of validity of the Standard Warranty. HERO in such cases, in the event of defects covered by the Standard warranty, within the term of validity of the Standard warranty under article 8.1 above, will simply send the customer the pieces to replace. Paragraph 8.5 above applies.
The immediate and automatic forfeiture of the customer from the Warranty occurs when even only one of the following circumstances occurs: (a) improper or incorrect use of the Product (meaning as such, for example, any use of the Product which does not comply with the HERO User Manual, or the use of the Product for purposes other than those provided for in the HERO User Manual above mentioned); (b) the improper or incorrect maintenance of the Product (that is to say, maintenance of the Product that is not in accordance with the provisions of the HERO User Manual); (c) tampering or alteration of the Product, after its delivery; (d) the execution of interventions, repairs, replacements with regards to the Product that are performed by anyone other than HERO’s staff or Services authorized by HERO or, in any way, by any other persons not authorized by HERO; (e) the use of dyes, colours, paints, materials other than those for which the Product was manufactured by HERO, as described in the HERO User Manual (or colours, paints, materials, other than those tested by HERO or specified by the customer before the execution of the supply); (f) the use of non-original spare parts or components (meaning as such, all pieces, parts, components, spare parts that have not been purchased by the Manufacturer or in any way that have not been supplied by the latter); (g) any violation or failure to comply with any provision and / or process and / or terms set forth under this Article 8). The Standard Warranty does not apply, also, in the case of non-payment or late payment (total or partial) of the Product to Manufacturer (without prejudice, in any way, to Article 8.1 above).
- GENERAL PROVISIONS
The assessment of the conditions for the possible operation of the Warranty is reserved solely to the Manufacturer. The Customer undertakes to provide all appropriate assistance and cooperation to allow the Manufacturer to carry out in the best way all these checks and verifications, in order to evaluate if the Warranty operates, also providing any documents and information that may be requested by HERO to this end. The terms and conditions above set forth are the only ones which are applicable to the Warranty and with reference to the period of validity of the Warranty as set forth under Article 8.1 above. The customer will have nothing else to claim towards the Manufacturer. The Warranty above mentioned is the only one provided by the Manufacturer, which does not assume any further liability, neither provides other warranties, other than the Warranty above mentioned, with reference to the sale or the use of Products, being expressly excluded any other remedy or consequence, as well as being expressly excluded any compensation whatsoever. The foregoing applies in any way even as an express derogation to any other provision of law. Any other liabilities, obligations, extensions, awards, statements of third parties, other than HERO (agents, distributors, dealers or resellers, customers, Services of HERO included, without limitations), are expressly excluded and not valid nor effective and not binding for HERO, unless otherwise accepted in writing by the Manufacturer.
- “PREMIUM” CONTRACT
The conditions below set forth apply only to customers who purchase a Product from HERO Europe S.r.l., undersigning at the moment of the purchase of the Product a “Premium” Contract with HERO Europe S.r.l. for the integration of the Standard warranty, under the terms and conditions below set forth. These conditions applicable to customers who have entered into a “Premium” Contract with the Manufacturer are valid and effective only for the duration of the Standard warranty and will immediately and automatically cease to have any effect upon the expiry or termination of the Standard warranty, regardless of the cause. “Premium” Contracts are effective only if undersigned by customers at the moment of the purchase of their Product, and the conclusion of a “Premium” Contract after the purchase of the Product is not permissible. “Premium” Contract stands alongside and integrates the Standard warranty, and is valid and effective for the term of such Standard warranty, as set forth under Article 8.1 above.
Customers who activate a “Premium” Contract upon the purchase of a HERO Product are entitled to the following additional services compared with those covered by Standard warranty:
- on-site intervention covered by Warranty of a HERO technician (or of an external Service delegated by HERO) with no charge of travel costs related to the intervention;
- no charge of costs for replacement of spare parts for interventions covered by Warranty and of the relevant transport costs.
Article 8.5 above applies, with regards to the return and delivery to HERO of the parts and/or components that are replaced and with regards to the term during which HERO may check and verify the replaced parts and/or components, as set forth under the Article 8.5 above mentioned (45 days). If the part/component is reputed by HERO as not defective, HERO will invoice to the customer the spare parts that must be paid by the customer within 30 days from the date of HERO’s invoice. In this event the customer must pay, in addition to the above, all costs of the intervention and all costs for travel, meals and for accommodation of technicians involved, as well as the transport/shipment costs of spare parts.
The replacement of USB cables, the covers of baskets of machines Archimedes model and/or of PCP pumps or other easily replaceable parts, which do not require the need for specialized technicians, will be made directly by the customer, even if they have entered into a “Premium” Contract with the Manufacturer. HERO, in such cases, will simply send the customer the pieces to replace.
- EXCLUSIONS REGARDING “PREMIUM” CONTRACTS
The “Premium” Contract does not operate in the same cases in which it is excluded the effectiveness and/or in any way the coverage of the Standard warranty, in accordance with article 8.4), above, and it is subject to the same grounds of forfeiture and termination under Article 8.7 above. Articles 8.1, 8.2, 8.3, 8.4, 8.5, 8.7 and 8.8 above apply also to “Premium” Contracts. Upon occurrence of any of the circumstances provided for above there will be no coverage of Warranty and also the “Premium” Contract cannot operate, and therefore working hours of technicians involved in the intervention, all travel, meals and accommodation costs and expenses related to the intervention will be invoiced to the customer, in addition to the spare parts that will be invoiced at the prices set forth in HERO’s Price List. Furthermore, the costs of transport/shipment of spare parts will be charged to the customer.
- Industrial/Intellectual Property Rights – Confidentiality
The Manufacturer is and remains the sole and exclusive owner of proprietary rights, titles, interests in its trademarks, logos, trade names, and, in general, of all rights of industrial and / or intellectual property (including all rights to its know-how and / or software, as well as on the Products). It is expressly forbidden to customers any use (in any way or form) of the Manufacturer’s trademarks, logos, trade names, know-how and in general of any of HERO’s industrial and / or intellectual property rights, without the Manufacturer’s prior written consent.
The customer undertakes to treat as strictly confidential and not to disclose to any third party any data, news, information, in any way related to or connected with contracts concluded by the customer with HERO (and their terms and conditions), the Products, and related documentation (including users manuals, data sheets, offers, proposals, order confirmations, and any other relating document: hereinafter collectively referred to as the “Confidential information”), without HERO’s express written consent. The disclosure of Confidential information is permitted only to customer’s employees, but even in this case only to the extent strictly necessary to use the Products, and in any way with the express guarantee by the customer with regards to the strict compliance of its employees with all obligations and duties of confidentiality and not disclosure as set forth under this Article 9 and/or in the relationships with the Services delegated by HERO.
If the customer becomes aware of any possible violations or infringements of HERO’s intellectual or industrial property rights and / or of HERO’s know-how and / or of any counterfeits or acts of unfair competition against HERO and / or its products, it will promptly inform HERO in writing, undertaking to provide to HERO any cooperation requested by the latter, also in order to prosecute the subjects who are responsible for such misconducts.
In case of violation of any of the obligations set forth under this Article 9, the customer shall pay to the Manufacturer a penalty of Euro 1,000,000.00 (one million), for each violation, without prejudice to the compensation for greater damages, and without prejudice to all other rights, demands, actions, remedies and consequences under applicable law.
The Manufacturer is the sole and exclusive owner of all rights (including intellectual and/or industrial property rights) on software licensed by the Manufacturer for the use of the Product, and on all that is part of it, or in any way connected to it (as, for instance, and without limitation, user manuals for the use of the software). Any right to use the above software that is granted by Manufacturer is strictly personal, non-transferable, non-exclusive, and is limited to the customer (and / or its personnel, engaged in the use of the Product, under the Customer’s responsibility), and is granted only to the extent strictly necessary for the legitimate use of the Product, subject to suitable title, and according to the instruction manual supplied by HERO. The customer will have to enter into and activate with HERO Europe s.r.l. a specific license for the use of the software. It is expressly forbidden any intervention, alteration, repair or modification to the software, without HERO’s prior written consent (HERO remains free to deny such consent). In particular, the software source code is reserved to HERO, which it is in no way required to disclose and / or to notify to the customer and / or to any other third party. It is prohibited to the customer to make copies of the software, as well as to grant license or sublicense and / or otherwise grant use to any third party, without HERO’s prior written consent. The right to use the software starts from the date of activation of the “TintWise™ license” on the Product, and it is strictly functional to the extent necessary for the use of the Product. The customer guarantees the fulfilment of the obligations and commitments set out above by its employees and in general by its staff. In case of any violations even only of one of the obligations or commitments above the customer shall pay to the Manufacturer the penalty set forth under Article 9 above, for each violation, without prejudice to its rights to further damages. The Customer acknowledges that the Manufacturer (directly or through the Service to which the interventions on Products have been entrusted by HERO) may at any moment carry out back-up relating to the Products (and to the Data base), excluding however the part of the data-base containing customer’s or user’s sensitive information. The Customer by signing this Agreement gives its consent to the carrying out of these back-up of data base.
- Force Majeure
The Manufacturer will not be responsible for failures, default or delays due to unforeseeable circumstances or force majeure and / or for any event not attributable to the Manufacturer and outside its reasonable control (including, by way of example, without limitation, total or partial blocks of production or of equipment, interruption or reduction in the supply of electricity, shortcomings or deficiencies of raw materials or other difficulties or delays related to the supplies of raw materials, abnormal increases of productive costs and / or of raw materials [meaning as such those increases equal to or greater than 30%, unless the commitment of the customer, in such cases, to renegotiate in good faith the prices in view of the rise of productive costs and/or raw materials], embargoes, limitations or blocks to import or export, disruptions of trade relations between countries, regulations, orders of authorities, difficulties in the circulation of products or raw materials, strikes, blocks of local, national or international circulation, wars, riots, coups, disasters, fires, earthquakes, floods, and any other cause constituting unforeseeable circumstances or force majeure). In the event any of the circumstances above should occur, the parties shall agree in good faith appropriate measures to address the issues raised in their mutual interest. The customer undertakes to accept any performance even partial or delays, to the extent, timing and conditions, permitted or imposed by the above circumstances, waiving any claim, dispute, actions about. If one of the above circumstances were to continue for more than ninety (90) days, the Manufacturer may terminate any contract entered into (including, without limitation, sales or supply contracts), without penalties or compensation for damages, only paying-back any amounts that have been paid in advance by the customer for unexecuted performance. In this event, with the pay back of the amount paid in advance by the customer for unexecuted performance, the customer shall not have anything else to claim against the Manufacturer.
- Transfer Or Assignment
The customer may not transfer or assign in whole or in part to third parties the present GCS and/or any contract concluded with the Manufacturer as well as any rights or obligations resulting from them. The Customer acknowledges that, in the event that the user of the Product is other than the Customer, such user will be required to accept HERO’s General condition for the use of the Products, upon the activation of the Product (that is to say, upon the activation of the license “TintWise™”).
- Applicable Law
The present GCS and all relationships and/or agreements between the parties will be solely governed by the Italian law, as the sole applicable law. In any case, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
- Exclusive Jurisdiction
For any dispute between the parties the Court of Cuneo (Italy) will have exclusive jurisdiction. Without prejudice to the foregoing it is expressly reserved to the Manufacturer (and only to the latter) the right to bring actions against the customer, alternatively, before the Court of the place where the customer has its headoffice (this represents for the Manufacturer a mere option).
- General Provisions – Personal Data Treatment
Any possible deviation and / or modification and / or integration of the GCS (and / or of any provision herein) must be in writing, and shall be effective only if accepted in writing and undersigned by HERO, under penalty of nullity. Without prejudice to the foregoing any possible exemptions and / or modification and/or derogations to the GCS, even if accepted in writing by HERO, will have force and effect limited only to the specific purchase order to which it is related, provided that such exemption or derogation has been expressly approved in writing and undersigned by HERO.
If any term or provision hereof should be held to be invalid, unenforceable or illegal, such holding will not invalidate or render unenforceable any other provision hereof, and the remaining provisions will not be impaired thereby, except only the case that the purposes of these GCS should be affected by this invalidity.
In the event these GCS are translated into different languages other than the Italian language, the Italian text shall prevail, being the only official language of these GCS. This is even in the event of differences between the various versions or translations.
If the customer is subject to bankruptcy or insolvency proceedings in general, or otherwise becomes insolvent, or being placed in voluntary liquidation, HERO may terminate these GCS and any contracts between the parties.
By undersigning these GCS the customer gives its consent to the treatment of its personal data by the Manufacturer for the purposes of these GCS and/or of any contracts between the parties, under the Italian Legislative Decree n. 196/2003. The foregoing is also related to article 10 above, with regards to the carrying out of back-up related to Products.
With the signing of the present purchase order, the customer confirms and undersigns all that is stated and contained in this purchase order and furthermore the customer declares it is aware of and knows thoroughly the HERO’s GCS above and their content and it declares to fully accept HERO’s General Conditions of Sale (GCS) that shall apply to all purchase orders, sale and/or supply agreements of HERO Products entered into between HERO Europe S.r.l. and the customer.