other costs of manufacturing and distribution,
and labor costs, that take effect between
the date of the Agreement and delivery of
Products and/or performance of Services. In
addition, if an Agreement has a term longer
than twelve (12) months, Ilti may adjust
Prices as of each 1st April (i) for the change
in the most recently published inflation index
compared to twelve (12) months earlier; and
(ii) to reflect variations in the foreign exchange
rate between US Dollar and Euro currency
and/or Chinese Renminbi currency and the
Euro currency of more than 5% since the date
of an Offer.
(c)Any cancellation, delay or other change
by Customer of a purchase order previously
accepted by Ilti will require the prior approval
of Ilti and the approval will be without prejudice
to any rights or remedies Ilti may have under
the Agreement or at law. If, on request of
Customer, Ilti agrees to any such change in
purchase order or a change in an Agreement,
including an (partial) cancellation, delay or
suspension, the addition, omission, alteration,
substitution or modification of the design,
quality, standard, quantity, manufacturing site
or performance (including sequence, quantities
or timing) of Products and/or Services (each, a
“Variation”), or a Variation is required due to
(i) changes in applicable laws, regulations or
industry standards, (ii) emergency situations,
(iii) incorrect or incomplete information
provided by Customer, or (iv) non-compliance
by Customer of any of its obligations under an
Agreement, Customer shall reimburse Ilti for
all costs and expenses incurred in respect of
such Variation promptly on first request.
(d) Ilti may invoice Customer upon shipment
of Products, or when Services have been
performed. Ilti may require (i) Customer to
pay on fixed payment days; (ii) an advance
payment of (part of) the Price; and/or (iii)
invoice per separate specified phase, time
period or milestone of performance. Customer
shall make net payment within thirty (30)
days of date of invoice to the designated
bank account of Ilti. Customer shall pay all
amounts due to Ilti in full without any set-off,
counterclaim, deduction or (tax) withholding.
Notwithstanding the aforesaid, any invoice
falling due on a day that is not a bank day shall
be payable on the preceding bank day.
(e)In the event Customer fails to make any
payment due under an Agreement on the
due date, then, whether or not Ilti has made
a formal demand for payment and in addition
to any other rights and remedies available to
Ilti, to the extent permitted by applicable
law: (i) all amounts due from Customer will
be considered payable and non-disputed,
admitted debt; (ii) Customer shall pay Ilti
interest on all due amounts from the due date
until Ilti has received full payment thereof, as
per art. 5 of the Legislative Decree 231/2002,
at a rate equal to the official ECB rate plus
7% or to the extent permitted by applicable
law, and shall pay Ilti all costs of payment
collection, including attorneys’ fees; and (iii)
Ilti may cancel any credit issued to Customer
and require, to its satisfaction, that Customer
provides (additional) security, pre-payments
or deposits, and may implement additional
conditional payment terms or accelerate
payments schedules for any outstanding
performance.
(f)Ilti may set off against and deduct from
any amount that Ilti (or any of its affiliates)
owes to Customer under any agreement any
amount that Customer owes to Ilti or against
any advance payments or deposits made
by Customer. In the event that Ilti sets off
amounts in different currency it will use a
commonly used currency conversion rate.
3.
DELIVERY
OF
PRODUCTS;
PERFORMANCE OF SERVICES
(a)Unless
agreed
otherwise,
Products
will be delivered Ex Works – Ilti facility
(INCOTERMS latest version). Ilti shall
perform Services at the location(s) agreed
in the Agreement. Dates communicated or
acknowledged by Ilti are approximate only, and
Ilti will not be liable for, nor will Ilti be in breach
of its obligations to Customer, for any delay
in delivery or performance, provided that Ilti
shall use commercially reasonable efforts to
meet such dates. In the event of delay, Ilti
shall use commercially reasonable efforts to
deliver Products or perform Services (where
applicable) within a period that is reasonably
needed given the cause of the delay, failing
which Customer’s sole and exclusive remedy
will be to cancel the purchase order for
undelivered Products and Services.
(b)Customer shall note any damage to Products
caused in transit, or shortages thereto, on
transport documentation immediately upon
receipt of Products, with due regard to
applicable instructions by Ilti or the carrier.
All Products delivered under the Agreement
will be deemed accepted by Customer as
conforming to the Agreement, and Customer
will have no right to revoke any acceptance,
unless Customer provides Ilti notice of a
claimed nonconformity within seven (7) days
of the date of delivery. Notwithstanding the
foregoing, any use of a Product by Customer
or its customers after delivery will constitute
acceptance of that Product by Customer.
Ilti shall at its option and within a reasonable
time, correct nonconformities by either repair,
make available parts, replace or deliver missing
Products, or credit the Price paid by Customer
for undelivered Products.
(c)Minor Nonconformities will not prevent
or suspend acceptance by Customer of the
Products, Services or both, and Ilti shall
correct these within a reasonable time. “Minor
Nonconformities” are nonconformities or
anomalies that do not hinder the overall
operation and intended use of Products or
Services in accordance with the specifications.
(d)Ilti may make changes to the design,
materials, fit and finish of Products or change
working methods, communication systems,
software or any other elements of Services, and
Documentation provided that such changes do
not materially affect the functionality of the
Product or Services.. Customer shall not use
or rely on Products and Services for any other
applications or purposes than agreed in the
Agreement.
(e)In the event of delay or interruption in
delivery of Products or the performance
of Services for reasons not attributable
to Ilti or due to a Variation, the timelines
for performance by Ilti will be amended
accordingly. Ilti will be entitled (in addition to
the increased costs referred to in section 2(c))
to a reasonable compensation by Customer
for any damages and/or costs incurred by such
delay.
(f)In the event that an Agreement contains
(minimum) stock requirements for Ilti,
Customer shall at first request of Ilti
purchase Products kept in stock under such
requirement.
4. USE OF PRODUCTS AND SERVICES
(a)Customer shall use Products and Services
only for their intended purposes and in
accordance with all instructions contained in
the manuals, guidelines, warranty terms and
any other terms and conditions applicable to
such Products and Services or provided by any
personnel of Ilti, deployed or subcontracted
by Ilti in the performance of an Agreement
(“Personnel”). Customer shall maintain the
site, site conditions and equipment supplied
and/or used by Ilti in the performance of
Services (including cablings, fittings and
electricity supply) in good condition, repair,
and working order, and shall protect same
against damage and external influences.
(b)Ilti shall not be responsible for the failure of
any of its Products or Services to provide the
expected performance, benefits, effects or
outcome arising from: (i) Customer’s failure to
comply with the terms under the Agreement;
(ii) failures or fluctuations of electric power;
(iii) sunset/shutdown of connectivity and
communication
technologies;
(iv)
Force
Majeure and other unusual external influences;
or (v) Variations.
5. DESIGN SERVICES; DOCUMENTATION
(a)If included as part of Services, Ilti shall
provide design services in accordance with
specifications as agreed by the Parties in
writing. Unless otherwise agreed, all IPR
(as defined in section 10(a)) in and to the
deliverables arising out of design Services
will exclusively vest in Ilti or a Ilti nominee.
Customer shall not use, publish, copy or
disclose these without prior approval of Ilti,
which approval Ilti may grant subject to
certain conditions, including the payment of a
reasonable fee.
(b)All the documentation provided by Ilti in
connection with the Products and Services,
including any user manuals or instructions,
catalogs, specification sheets, data, drawings,
schedules, designs, source code, or any
other documents or information obtained
from Ilti or created by Ilti in whatever form
including
electronic
or
printed
format
(“Documentation”) will remain the property
of Ilti. Documentation is not sold to Customer,
but licensed subject to the license terms in
section 10 below. Unless otherwise agreed, all
IPR in and to the Documentation is retained
by Ilti or a Ilti nominee. Customer shall not use,
publish, copy or disclose the Documentation
except in accordance with these Terms.
6. INSTALLATION; SERVICES ON-SITE
This section applies where Ilti (or its
subcontractor) will perform construction,
cabling or installation activities (“Installation”
or “Install”) or other Services at a site owned
or controlled by Customer.
(a)Customer is responsible for the timely
completion of preparatory works and site
preparations in conformity with requirements
set by Ilti. Customer shall prior to the agreed
start of Installation or other Services on site,
and in such a manner that Ilti can perform in
the most efficient manner and within agreed
time schedules: (i) provide and maintain the
site conditions (including infrastructure); (ii)
provide all necessary information, instructions,
inspections,
authorizations,
approvals,
permits and notify Ilti about the location of
any cables, electric power lines, water pipes
or the like, including surveys describing
physical characteristics, legal limitations and
utility locations for the site; (iii) provide site
access, including traffic management, where
applicable; and (iv) put at the disposal of Ilti
all materials, tools, constructions and other
facilities, and all other reasonable assistance
in an accurate and timely manner, and at no
additional costs to Ilti, all in compliance with
applicable laws, including all applicable health
and safety, electrical and building codes.
(b)Customer shall not call Ilti upon site before
the obligations under section 6(a) have been
satisfactorily completed. In the event of
waiting times of more than four (4) hours on a
day, Ilti may reschedule and charge Customer
a full working day for that day for the resources
concerned.
(c)Upon finalization of Installation or other
Services on-site, Ilti shall notify Customer
in accordance with the acceptance protocol
agreed between the Parties.
7. RISK AND TITLE
(a)Risk of damage to or loss of Products will
pass to Customer (i) upon delivery by Ilti to
Customer in accordance with the applicable
INCOTERM; or (ii) in the event that Ilti
Installs Products on-site, unless agreed
otherwise, upon delivery on-site.
(b)Legal title to Products will pass to Customer
only when Ilti (or its financiers) has received
payment for such Products in full and, to
the extent permitted by applicable law, Ilti
received payment in full of all other amounts
due by Customer under any other agreement
with Ilti (or any of its affiliates).
8. FORCE MAJEURE
Ilti will not be liable for any breach resulting
from a Force Majeure event. If a Force
Majeure event occurs, Ilti’s performance will
be suspended for the period of such Force
Majeure event. “Force Majeure” means any
circumstances or occurrences beyond the
reasonable control of Ilti, whether or not
foreseeable at the time of an Agreement, as a
result of which Ilti cannot reasonably perform
or execute its obligations, including, without
limitation, acts of God, natural catastrophes
including earthquake, lightning, hurricane,
typhoon, flooding or volcanic activities or
extreme weather conditions, strikes, lock-outs,
war, terrorism, political situation, civil unrest,
riots, sabotage, vandalism, industry-wide
shortages, breakdown of plant or machinery,
fault or loss of electricity supply, cyber attacks
and hacking or non-performance by suppliers
of Ilti or by other third parties on which
Services rely (including connectivity and
communication services). In the event that
Force Majeure event extends (or is reasonably
expected by Ilti to extend) for a period of three
(3) consecutive months, Ilti will be entitled to
cancel all or any part of an Agreement without
any liability towards Customer.
9.
LIMITED
WARRANTY
AND
DISCLAIMER
(a)In most instances, Ilti Products are sold
subject to an applicable standard limited
warranty either accompanying the product or
as published on Ilti’s website as the standard
warranty applicable for a particular Product
(the “Standard Product Warranty”). For any
Product that is sold by Ilti that is not subject
to an applicable Standard Product Warranty,
Ilti warrants only that for one (1) year from
delivery to Customer the Products will be free
from Defects. A “Defect” (or “Defective”)
means, in relation to a Product, that a Product
has any defect in material or workmanship
which causes the Product to fail to operate in
accordance with the specifications provided
by Ilti, with consideration given to the overall
performance of the Product and, in relation to
Services, means that the Service has not been
performed in a competent, diligent manner.
(b)Unless otherwise agreed by the Parties, Ilti
does not provide any warranty for third party
products.
(c)In order to be entitled to make a valid claim
under warranty, Customer shall promptly
notify Ilti of alleged Defective Products or
Defective Services prior to expiration of the
warranty period. In the event that Ilti decides, in
its sole discretion, that a claim under warranty
is valid, Ilti shall, within a reasonable time, at
its own option, repair or offer replacement
products for Defective Products, or remedy or
supplement any Defective Services. If despite
reasonable efforts of Ilti, a Defective Product
cannot be repaired, no replacement product
can be supplied or Defective Services cannot
be remedied or supplemented, Ilti shall make
an appropriate refund or credit of monies paid
by Customer for those Defective Products
or Defective Services. Repairs, replacements
or remedies will not extend or renew the
applicable warranty period. Customer shall
obtain consent from Ilti on the specifications
of any tests it plans to conduct to determine
whether a Defect exists. Replacement
products supplied by Ilti may have minor
deviations in design and/or specifications which
do not affect the functionality of replaced
Product. In respect of any replaced or credited
Products, Ilti may, in its sole discretion, either
claim the property of replaced or credited
Products and require Customer to return
these to Ilti, or instruct Customer to destroy
these at Customer’s costs.
(d)Customer shall bear the costs of access
for remedial warranty efforts by Ilti, including
removal
and
replacement
of
systems,
structures or other parts of Customer’s facility,
the de-installation of Defective Products,
