TERMS AND CONDITIONS OF SALE ON THE WEBSITE
1. SCOPE AND SUBJECT MATTER OF THE CONTRACT
1.1 These General Conditions regulate indiscriminately distance sales contracts – stipulated on the website http://demarcocustom.it (hereinafter “shop on-line De Marco”), having as their object the products illustrated on said online shop (hereinafter “the Products”) - between Dilvio De Marco SPA, registered offices in C.so Allamano, 105 - 10098 - Rivoli (TO-ITALY) VAT No. 05126380012, (hereinafter “De Marco”) and third parties whether they qualify as “Consumers” according to the definition in art. 3, paragraph 1, letter a) of the Consumer Code (Legislative Decree 206/2005 and subsequent amendments) and of Council Directive 93/13/EEC of 5 April 1993 and subsequent amendments and integrations, or do not qualify as “Consumers” according to the above definition, i.e. subjects, natural or legal persons, who act for purposes inherent in the entrepreneurial, commercial, craft or professional activity they exercise or in any case for purposes that fall within their professional activity; such subjects will be hereinafter indicated as “Customers” or “Customer”.
1.2 These General Conditions regulate, by way of example and not exhaustively:
a) the sale of Products to persons having access to reserved areas of the De Marco on-line shop;
1.3 These General Conditions may be waived in writing by the Parties.
2. CONCLUSION OF THE CONTRACT
2.1 In order to proceed with the purchase of Products, the Customer will be required to:
a) Declare beforehand whether they are acting as “Customer”, exclusively for the purpose of verifying if any different conditions of sale are to be applied;
b) Read and accept the present Conditions by ticking the confirmation box;
c) Fill out, by entering all the data requested, the electronic order form present on the De Marco on-line shop site (hereinafter “the Form”) and which is therefore to be considered as an order/contract proposal (hereinafter “the Order”).
It is specified that the Form contains a summary of the General Conditions, the key features of each Product ordered and the respective price (including all applicable taxes or duties), the means of payment the Customer may use to purchase each Product, the methods available for delivering the Products purchased, shipping and delivery costs, the conditions for exercising the Customer's right of withdrawal, and the methods and times for returning the Products purchased;
d) Check, identify and correct any errors of data entry in the Form;
e) Email the Form to firstname.lastname@example.org.
2.2 The Form will be filed in the De Marco electronic database for the period of time necessary to process the Orders and in any case within the terms established by law. The Customer (if a registered user) will be able to access his own Form by consulting the section of the De Marco on-line shop “Order List” within the “user profile”.
2.3 De Marco will send the Customer, at the e-mail address provided on the Form, an automatic Order Confirmation (hereinafter “the Order Confirmation”) containing a summary of the information contained on the Form, such as, by way of example and not exhaustive: the conditions applicable to the contract; the key features of the Products sold; a detailed indication of the price, the means of payment, the costs of delivery, the taxes applicable and the terms of withdrawal.
2.4 The contract is considered concluded when De Marco sends the Order Confirmation.
2.5 Even though the Order Confirmation has been sent, De Marco shall have the right NOT to proceed with the Orders under clause 3) in the following cases:
a) De Marco has not received payment for the Products;
b) The data the Customer has entered on the Form are incomplete and/or incorrect;
c) The Products ordered by the Customer are not available, even temporarily;
d) The Customer requests unique pieces (i.e. products made according to specific requests of the Customer and different from the standard Products) that do not comply with safety standards or good practice.
2.6 If De Marco does NOT intend to execute an Order, it will have to perform the following activities in a timely manner, and in any case within 30 (thirty) days from the day after the Order has been transmitted, or from the moment it becomes known that it is impossible to fulfil the contract:
a) inform the Customer by e-mail; in the case of point 2.5 letter c) above, the Customer will be informed of the estimated waiting time and may decide to keep the order on hold in accordance with what is established in point 5;
b) reimburse the Customer the sums paid for the Order promptly and in any case within 30 days from the ascertained impossibility of executing the contract.
3. PRODUCT CHARACTERISTICS
3.1 Unless the product specification or order confirmation indicates otherwise, the Customer acknowledges that the products are not approved for road use and therefore may only and exclusively be used for other purposes, such as, for example, exhibitions, events, trade fairs or use on road circuits closed to public transit.
3.2 De Marco therefore declines all responsibility if the Customer uses the Products for normal road traffic, and will not be liable for damage caused to property and/or persons by usage in a way other than that described in the previous clause.
4. PRICE AND MODE OF PAYMENT
4.1 The Customer may pay the price of the Products as follows:
a) by PayPal;
b) by credit card.
c) through MyBank
4.2 The price for the purchase of the Products and shipping costs, as indicated on the Form, will be charged to the Customer's bank account at the time of the Order.
5. TERMS OF DELIVERY
5.1 De Marco will ship the Products as soon as possible after receiving the relevant payment. If De Marco is not able to ship the Products within 30 (thirty) days after receipt of payment, De Marco will notify the Customer indicating the estimated shipping date and the Customer can decide whether to accept said date or cancel the Order and obtain a refund of the amount paid. If the Customer decides to cancel the Order, he waives the right to claim any compensation for damages due to delay.
6. RIGHT OF WITHDRAWAL
6.1 Before the Products have been shipped, the Customer shall be entitled to exercise the right of withdrawal, without any penalty, by cancelling the Order by email within 14 (fourteen) days from the date of the Order;
6.2 After the Products have been shipped, the Customer shall be entitled to exercise the right of withdrawal, communicating said withdrawal within 14 (fourteen) days from the day in which the Products have been received, by registered letter with acknowledgment of receipt or by certified email (hereinafter, “the Communication”). The Communication may also be sent, within the same time span, by telegram, fax and/or email, provided that it is confirmed by registered letter with acknowledgment of receipt within the following 48 (forty-eight) hours.
6.3 The Communication must contain:
a. the intention to withdraw from the contract;
b. order identification data;
c. indication of the Product(s) for which the right of withdrawal is being exercised.
6.4 The right of withdrawal shall be deemed to have been properly exercised by the Customer if all the following conditions are met:
a. The Communication has been sent to De Marco within the terms of clause 6.2;
b. The Communication contains the data referred to in clause 6.3;
c. The Products have not been altered and/or damaged. If there is a drop in the value of the Products as a result of their being handled for reasons other than for what is necessary to establish that they are functioning properly, De Marco will reduce the refund referred to in clause 6.5 letter b) below “proportionally”;
d. The Products are returned in their original packaging, even if this has been damaged by being opened;
e. The Products are sent to De Marco in a single shipment and within 15 (fifteen) days from the date on which the Customer has validly communicated his intention to withdraw from the contract. De Marco reserves the right not to accept items belonging to the same Order, returned and shipped at different times.
6.5 As soon as De Marco receives the Products pursuant to clause 6.4 letter e) and if the right of withdrawal has been correctly exercised pursuant to clause 6.4, De Marco shall:
a. Send an email to the Customer informing them of receipt of the returned Products;
b. refund the Customer the sums paid for the Product within 30 (thirty) working days from the date on which the Products were received by De Marco.
6.6 The actual time for the chargeback or refund of the sums pursuant to clause 6.5 letter b) varies with the credit/debit card used and therefore no delay can be attributed to De Marco in relation to the chargeback. In any case, the date of the chargeback will be the same as that of the charge itself and the Customer will therefore not suffer any loss in terms of bank interest. This refund will be made by De Marco to the person who made the payment, even if they are not the recipient of the Products indicated on the Form.
6.7 The only expenses due by the Customer to exercise the right of withdrawal in accordance with clauses 6.2 - 6.5 are the direct expenses for returning the Products to De Marco.
6.8 De Marco will inform the Customer by email if the right of withdrawal has not been exercised in accordance with clause 6. In this case, the Customer may choose to reacquire the purchased Products at his own expense, informing De Marco by email; if the Customer is not interested, De Marco reserves the right to retain the Products charging a penalty equal to 30% of the amount paid by the Customer.
7.1 The Products will be packed and prepared for shipment by De Marco according to the standard care and precision that the nature of the product demands, and with the protection required for normal transport conditions.
7.2 Any special packaging or additional service must be specifically requested by the Customer and the relevant expenses will be at the Customer's sole charge.
8. PRODUCT DELIVERY AND LIMITATIONS OF LIABILITY
8.1 Products are delivered “Ex Works” Incoterms 2010 - ICC - De Marco headquarters and factory, by a carrier chosen by De Marco and with transport costs borne by the Customer, as indicated on the Form.
8.2 The Products will be delivered by De Marco to the Customer at the address indicated by the latter on the Form. An email message will be sent to the Customer at the moment of shipment.
8.3 If the Customer is absent at the time of delivery at the place indicated, a notice will be issued, after which it will be the Customer's responsibility to contact the carrier as soon as possible to agree on new delivery arrangements.
8.4 De Marco accepts no liability for possible disservices, delays or omissions in delivery due to unforeseeable circumstances or force majeure. In any case, the liability of De Marco for delays in delivery shall not exceed the shipping costs incurred by the Customer.
9. WARRANTY - REPORTING OF FLAWS AND DEFECTS
9.1 De Marco warrants the Customer that the Products will comply with the technical specifications indicated in the Order, and will therefore be free from flaws and defects.
9.2 Small discrepancies compatible with the craftwork done on Products, such as, by way of example but not limited to, inaccuracies in drilling or couplings, that do NOT affect the functionality and/or appearance and/or image of the Products, are NOT considered to be flaws or defects.
9.3 Unless otherwise stated in the Order Confirmation, De Marco guarantees the Products supplied for the duration of the Legal Warranty.
9.4 The warranty does not cover those parts of the Products subject to normal wear and tear and any consumable materials supplied.
9.5 The warranty under this clause will expire immediately in the event of:
i. Tampering, disassembly, faulty or wrong use, faulty or wrong maintenance and/or storage of the Products or non-compliance with specifications indicated in the assembly manual provided through the instructions attached to the Product sheet on the site (or attached to the Product);
ii. Use of spare parts for the Products not supplied by De Marco.
9.6 The Customer shall examine the Products purchased as quickly as possible and, in any case, must report any defects and/or faults to De Marco, by fax or email, with subsequent confirmation by registered letter with return receipt, pursuant to and within the terms of article 132 of the Consumer Code (DLGS 206/2005). It is understood that claims or disputes do NOT entitle the Customer to suspend or in any way delay payments.
9.7 The Products will be recognised as effectively flawed and/or non-compliant only after De Marco has ascertained and verified the existence of the flaw and/or the non-compliance, by sending an email to the Customer.
9.8 Barring cases of fraud or gross negligence, under no circumstances will De Marco be obliged to pay compensation for direct or indirect damages of any nature arising from the Products.
10. WARRANTY REPLACEMENTS AND REPAIRS
10.1 At the Customer’s discretion, the warranty includes:
i. The repair of Products acknowledged to be defective and/or flawed or,
ii. If repair is not possible, replacement of the Products acknowledged to be defective and/or flawed or,
iii. A reduction in the price of Products proportionally to the defects and/or flaws.
10.2 De Marco is NOT liable for any other charge or performance than those indicated in Clause 11.1.
10.3 Replaced Products shall be returned to De Marco, at De Marco's expense, within 7 (seven) days from receipt of the notice referred to in Clause 9.7. De Marco, at its sole discretion, may proceed with the replacement, authorising the Customer NOT to return the Products.
11. EXCLUSION OF LIABILITY
11.1 De Marco DOES NOT accept any liability for any damage that may be caused, directly or indirectly, to the Customer or to third parties/things/animals by the incorrect use and/or assembly of the Products, by inadequate maintenance or by repairs carried out by unauthorised personnel.
11.2 De Marco DOES NOT take any responsibility for any injury or damage to the Customer or third parties occurring during or in connection with the loading, unloading, assembly or installation of the Products;
11.3 The Customer expressly exonerates De Marco from any liability pursuant to clauses 11.1 and 11.2 and undertakes to hold De Marco fully harmless and indemnified;
11.4 De Marco is NOT responsible for the supply of services or products by the parties referred to in clause 1.2 letter b) or for any contractual or extra-contractual relationship between these parties and users of the De Marco on-line shop.
12. CUSTOMER OBLIGATIONS IN RELATION TO THE PROTECTION OF INDUSTRIAL PROPERTY
12.1 The Customer, aware of the importance and of the substantial industrial and commercial value of information regarding the Products, Know-how, technical and commercial information relating to De Marco such as, by way of example but not limited to: drawings, prospectuses, documents, formulas, catalogues, user manuals, Frequently Asked Questions, product codes, price lists and correspondence (hereinafter “the Information”) of which he may directly or indirectly come into possession or acquire knowledge of, undertakes NOT to disclose and NOT to use such Information, even after the contract has been terminated.
12.2 In the light of the provisions set out in clause 12.1 above, the Customer undertakes not to duplicate, disclose or use the Information in any form, for the purpose of carrying out or causing to be carried out activities in competition - even potentially - with those of De Marco (even after termination of the contract) directly or indirectly, on his own behalf or through and/or on behalf of third parties.
12.3 Access to the Information shall not mean that the Customer is entitled to any rights, therefore any transfer of rights on the Information by way of a licence or otherwise shall be excluded.
12.4 Violation of the above clauses shall be a source of liability for the Customer and shall entitle De Marco to compensation for damages.
13. FORCE MAJEURE
13.1 De Marco shall NOT be responsible for the non-fulfilment of any of its obligations if this is due to force majeure. By way of example, the following are force majeure events: wars, civil uprisings, fires, floods, power and energy cuts, strikes, serious difficulties in procurement, general and mandatory provisions of the Authorities.
13.2 If the cause of force majeure lasts for a period of more than 6 (six) months, each Party shall have the right to terminate the contract.
14. APPLICABLE LAW
14.1 The contract and these General Terms and Conditions are governed by and interpreted in accordance with Italian law.
15.1 Any communication envisaged or imposed under the Contract or the General Conditions shall be considered validly executed:
• for De Marco: at the addresses and contacts indicated by the Customer in the Order;
• for the Customer: at the following addresses Dilvio De Marco Spa - C.so Allamano, 105 - 10098- Rivoli (TO); Email: email@example.com.
16.1 These General Conditions are drawn up in Italian, English and German. In the case of discrepancies, the Italian text shall override the English and German texts.
17. COMPETENT COURT
17.1 All disputes arising from these General Conditions or from a contract/purchase order, or in any case related to them, including those pertaining to their validity, effectiveness, interpretation, execution and termination, without prejudice to mandatory international regulations and those in force in the country where the Customer is domiciled, shall be under the exclusive jurisdiction of the Court of Turin.
18. POLICY REGARDING THE PROCESSING OF PERSONAL DATA
18.1 For the purposes of the GDPR (n. 679/2016) adopted by Italian legislation on the processing of personal data, Dilvio De Marco SpA, as owner of the processing, informs the Customer that the personal data (personal, ID, fiscal and economic) relating to legal persons who enter into relations with De Marco, as well as the personal data of natural persons who act on their behalf, are collected, recorded, reordered, stored and processed, for administrative-accounting purposes. Specifically, these purposes relate to the following activities: management of orders and invoices; stipulation of contracts (including contracts for the insurance of De Marco's credit with the Customer and contracts for the assignment of this credit); administration of suppliers; fulfilment of contractual obligations or legal obligations. The above data may be communicated to third parties, in relation to the purposes for which they were acquired and collected.
18.2 The above is valid as information under the above-mentioned legislation and the Customer declares to give his consent, for all legal purposes, to the processing of the above-mentioned data by De Marco.
Pursuant to and for the purposes of Articles 1341 and 1342 of the Italian Civil Code, the Customer declares they have expressly read and accepted the following clauses:
Art. 2): “Conclusion of the contract” (Clauses 2.4 - 2.5 - 2.6);
Art. 3): “Product characteristics“ (Clause 3.2);
Art. 4): “Price and mode of payment” (Clause 4.2);
Art. 5): “Terms of delivery” (Clauses 5.1 - 5.2 - 5.3 - 5.5 - 5.6);
Art. 6): “Right of withdrawal” (Clauses 6.4 - 6.5 - 6.6 - 6.7 - 6.8);
Art. 8): “Product delivery and Limitations of liability” (Clauses 8.1 - 8.3 - 8.4 - 8.5)
Art. 9): “Warranty – reporting of flaws and defects” (Clauses 9.2 - 9.3 - 9.4 - 9.5 - 9.6 - 9.7 - 9.8);
Art. 10): “Warranty replacements and repairs” (Clauses 10.1 - 10.2 - 10.3);
Art. 11): “Exclusions of liability” (Clauses 11.1 - 11.2 - 11.3 - 11.4);
Art. 12) “Customer obligations” (Clauses 12.1 - 12.2 - 12.3);
Art. 13) “Force majeure” (Clauses 13.1 - 13.2)
Art. 14): “Applicable Law”;
Art. 16): “Language”;
Art. 17): “Competent court”.