health and safety of Personnel at the site.
Customer shall timely inform Personnel of
required safety precautions and advise Ilti
of all applicable site-specific health, safety,
security and environmental requirements
and procedures. Ilti has the right, but not the
obligation, to, from time to time, review and
inspect applicable health, safety, security and
environmental documentation, procedures
and conditions at the site.
(b) Customer shall ensure that no hazardous
materials are present at the site. If, in the
reasonable opinion of Ilti, the health, safety,
or security of Personnel or the site is, or may
be, imperiled by security risks, terrorist acts or
threats, the presence of or threat of exposure
to hazardous materials, or unsafe working
conditions, Ilti may, in addition to other rights
or remedies available to it, evacuate some or all
Personnel from the site (with the reasonable
assistance of Customer), suspend performance
of all or any part of an Agreement, and/or
remotely perform or supervise Services (if
possible) with no further liability to Customer.
(c) Conditions at a site that differ materially
from those disclosed by Customer, or
previously unknown physical conditions at site
that differ materially from those ordinarily
encountered and generally recognized as
inherent in work of the character provided for
in the Agreement, will be deemed a Variation.
18.
BREACH;
SUSPENSION;
TERMINATION
(a) In the event of (i) a breach by Customer
of any of the provisions of the Agreement
or these Terms, including any failure to pay
any amount as and when due; or (ii) in the
reasonable opinion of Ilti, the financial position
of the Customer (or a material change thereof)
is likely to affect Customer’s ability to perform
its obligations under the Agreement; or (iii)
any proceedings in insolvency, bankruptcy
(including
reorganization),
liquidation
or
winding up are instituted by or against
Customer, whether filed or instituted by
Customer (voluntarily or involuntarily), a
trustee or receiver is appointed over Customer,
or any assignment is made for the benefit of
creditors of Customer; or (iv) Customer ceases,
or threatens to cease, to carry on business, or
(v) the control over or ownership of Customer
changes, then Ilti may declare all amounts
outstanding by Customer immediately due
and payable and may set off any amount that
Ilti (or any of its affiliates) owes to Customer
under any agreement including any advance
payments or deposits made by Customer,
against amounts due pursuant to section 18(b).
In addition, Ilti may in its sole discretion by
notice to Customer with immediate effect
suspend or cancel any performance due from
Ilti (including production, delivery, installation
and commissioning of Products, obligations
under warranty and performance of Services)
or terminate the Agreement or any part
thereof, without any liability, and/or suspend or
cancel any credit terms offered to Customer.
Ilti may only use the right to terminate an
Agreement pursuant to this section if, in
respect of an event under (i) above that is
capable of being remedied, Customer fails to
remedy the breach within fourteen (14) days,
or in respect of an event under (ii), Customer
fails to provide Ilti with a bank guarantee or
other security to the satisfaction of Ilti within
fourteen (14) days.
(b) Customer shall indemnify, defend and
hold harmless Ilti and its affiliates, and their
officers,
directors,
agents,
employees,
successors, and assigns from and against, all
losses (including loss of profits or turnover),
liabilities, costs (including legal costs and costs
incurred in relation to unfinished products)
and expenses arising out of or in connection
with any of the following events: (i) a breach
by Customer of any of the provisions or
obligations of the Agreement or these Terms,
or the occurrence of any of the other events
set out in section 18(a); (ii) any claim by third
parties for any loss, damage or injury or death
caused or alleged to be caused by the negligent
use, application, or installation of Products,
or caused by any modification of Product or
integration of Product into other products
not authorized by Ilti, by Customer or its
contractors, agents, affiliates or customers to
whom it sold Product; or (iii) non-compliance
by Customer with section 7(b), in which event
costs will include the full replacement costs of
products, systems or other equipment.
(c) Upon (early) termination or expiration
of an Agreement, (i) all rights and licenses
granted to Customer under that Agreement
will immediately cease; (ii) Customer shall
return, delete (including from all hard disks
and memory) or destroy (and a duly appointed
officer shall certify to such destruction)
all information disclosed under section 13,
including software not embedded in Products,
and all copies thereof; (iii) return to Ilti, at
the costs of Customer, any Products of which
(legal) title has not passed to Customer (in
accordance with section 7) and any other
products, systems or equipment supplied
and/or used by Ilti in the performance of
the Services; and (iv) all reasonable costs
and expenses incurred by Ilti (including a
reasonable profit) for any activities related
to work performed by Ilti prior to such
termination will be considered due, payable
and non-refundable.
(d) In the event of a suspension that lasts for
more than two (2) months, the provisions of
section 18(c)(iv) will also be applicable to any
activities related to work performed by or for
Ilti prior to such suspension.
(e) The rights of Ilti pursuant to this section
18 will be in addition to any other rights and
remedies Ilti may have at law or in equity. In
the event of termination of an Agreement,
the terms and conditions destined to survive
such termination or expiration will so survive.
Termination will not affect the rights of the
Parties accrued up to the date of termination.
19. GOVERNING LAW AND FORUM
(a) The laws of Italy govern all Agreements,
Offers and these Terms, without regard to
conflict of law principles. Any legal action or
proceeding arising out of or in connection
with an Agreement, an Offer or these Terms
that cannot be settled through consultation in
good faith within thirty (30) days after notice
from either Party that a dispute exists, will
be brought exclusively in the courts of Milan,
Italy, provided that Ilti will always be permitted
to bring any action or proceedings against
Customer in any other court of competent
jurisdiction. The United Nations Convention
on Contracts for the International Sale of
Goods will not apply.
(b) Nothing in this section 19 will be construed
or interpreted as a limitation on either Party’s
right under applicable law to seek injunctive
or other equitable relief, to take any action to
safeguard its possibility to have recourse on the
other Party or to bring action or proceedings
in relation to any failure to pay any amount as
and when due.
20. PRIVACY AND USE OF DATA
(a) Each Party shall comply with all applicable
data protection laws. Unless agreed otherwise
by the Parties, Ilti (or its subcontractors)
will not process information relating to any
identified or identifiable natural persons
(“Personal Data”) for Customer or on
Customer’s behalf.
(b) Customer acknowledges and agrees that Ilti
and its affiliated companies (or their respective
subcontractors) may collect information and
data generated from Products and Services
(including any third party product, service
or system provided in conjunction with the
Product and/or Service) and/or the use thereof
(“Usage Data”). Ilti is entitled to use the Usage
Data, free of charge, at any time during the
term of an Agreement and afterwards, in its
sole discretion for any purposes whatsoever,
including to aggregate or compile Usage Data
with other data, create IPR or derivative works
of or modify or adapt Usage Data to provide,
maintain, and improve products and services,
and to develop new products or features or
services.
21. MISCELLANEOUS
(a) The invalidity or unenforceability of any
provision of these Terms or an Agreement will
not affect the validity or enforceability of any
other provision thereof, all of which will remain
in full force and effect. In the event of such
finding of invalidity or unenforceability, the
Parties shall endeavor to substitute the invalid
or unenforceable provision(s) by such effective
provision(s) as will most closely correspond
with the original intention of the provision(s) so
voided. At reasonable notice, Customer shall
assist Ilti in verifying Customer’s compliance
with the Agreement.
(b) Any right of Ilti set out in these Terms will
be without prejudice to any rights or remedies
Ilti may have under the Agreement or at law
or in equity. Customer acknowledges that Ilti
Luce Srl and any of its affiliates are intended to
be third-party beneficiaries for purposes of all
benefits under, and may enforce the provisions
of the Agreement, including these Terms,
where applicable. The failure or the delay of
either Party to enforce any provision of these
Terms or an Agreement will not constitute a
waiver of such provision or a waiver to enforce
it.
(c) The terms of an Agreement (including
these Terms and any other terms and
conditions forming part thereof) state
the entire understanding and agreement
between the Parties as to the sale of Products
and performance of Services under that
Agreement and will supersede any prior
promises,
agreements,
representations,
undertakings or implications whether made
orally or in writing between Ilti and Customer
with respect to the subject thereof. The Parties
expressly acknowledge that, in entering into
an Agreement, no reliance has been placed
on any representations which have not been
incorporated as part of that Agreement. No
variation to an Agreement will be binding upon
either Party unless made in writing and signed
by an authorized representative of each of the
Parties.
(d) Prices and terms are subject to correction
for typographical or clerical errors.
22.
TRACEABILITY
OF
FINANCIAL
FLOWS
(a) If a public tender is awarded to one of
the Parties (“aggiudicazione di procedura ad
evidenza pubblica”), pursuant to Article 3 of
Italian Law 136/2010 as amended from time
to time, the Parties assume all the obligations
of financial flows’ traceability, otherwise this
agreement will be considered as null and void.
(b) The Parties also undertake to notice the
contracting authority and the competent
“prefettura-ufficio territoriale” about any
non-fulfilment of the obligations mentioned
under letter (a) above.
