General Conditions for the Sale of Goods by DESA S.R.L.
DESA S.R.L., hereinafter referred to as 'Desa', with its registered office at Via G. Degennaro, 01 70132 Bari (BA), VAT number IT06276470728, represented by Mr. Francesco Desantis, in his capacity as legal representative,
Whereas:
Desa operates in the distribution and sale of wholesale goods belonging to numerous merchandising categories, all listed in the chamber of commerce registration, including, but not limited to, electrical, electronic, medical goods, and solar panel systems, proposes the following general conditions for the sale of goods as offered by it, and the customer, by expressing the intention to confirm the purchase,
ACCEPTS the following:
1. Object of the Agreement
This document defines the terms and conditions under which Desa offers its customers the services of marketing goods, listed as examples but not exhaustively in the preamble of this document. In addition, upon explicit request of the customer, Desa can organize the shipment of these goods, using third-party professionals, and can, upon explicit request of the Customer, provide an optional insurance service for the transport of goods, also through the use of third-party professionals. Such additional services are provided on the condition that all conditions specified in this agreement are fully respected.
2. General Conditions
Commercial relations between DESA and its customers are exclusively governed by these General Conditions of Sale and any additional specifications stated in pre-sale documents and/or pro-forma invoices and/or invoices. Any different agreement shall not be considered binding unless formalized in writing. Furthermore, the customer, by expressing the intention to confirm the purchase, for example by paying the due amounts, or requesting the shipment of goods, or by explicit consent, accepts all the conditions and integrations reported in the pre-sale documents, pro-forma invoices, and invoices. Placing an online order also implies unconditional acceptance of these conditions.
The contract is concluded with the confirmation by DESA of the order sent by the customer, which must be expressed in writing through the sending of a sales document.
3. Liability
Desa is not liable for any direct and/or indirect damage or loss resulting from the sale of goods and services proposed in the catalog published on the website www.desatrade.com or offered through distance sales, even for delayed and/or failed delivery of the product, nor for the correspondence of the goods to the specifications published on the site, nor for any other fact not directly attributable to Desa.
4. Technical Information
The technical information presented on the website www.desatrade.com or transmitted through other electronic means to our customers is based on the information provided by the manufacturers of the products listed in our catalog. Therefore, DESA reserves the right to modify or update the technical and dimensional specifications of the cataloged products, following the communications of the manufacturers, even without notice.
Regarding the purchase of goods from DESA, which include software licenses or software necessary for their operation, the customer must comply with the following conditions regarding such software:
Recognize and accept that the use of the software by the end user is allowed only after accepting and in accordance with the terms and conditions of any use licenses provided by the manufacturers. The customer commits to communicate these conditions to the end users, emphasizing that in their absence the software cannot be used.
Commit not to copy, reproduce, translate, disassemble, perform reverse engineering activities, attempt to decipher or appropriate the source code, modify, use in any way the software, or allow third parties to access such software. Furthermore, it undertakes, in the resale phase, to impose on the purchasers the observance of such obligations.
In the event of non-compliance with the provisions of this article, the customer undertakes to hold DESA harmless from any damage, cost, expense, and burden that may arise from the non-fulfillment of such obligations.
5. Orders
Orders at DESA are accepted exclusively if submitted in written form through channels such as WhatsApp messaging, Skype, traditional mail, or email (defined as "offline" and managed with the support of DESA's staff), or through the internet procedure (defined as "online") on the website www.desatrade.com.
In the case of "online" orders, at the end of the ordering process, the customer will receive a confirmation email, which will attest to the receipt of the order and provide the related "order number." The specific modalities of acceptance and confirmation of the order will be established in agreement with each customer.
Customers have the option to request that the shipment of goods take place on a future date, different from the date of acceptance of the order. In the event that the requested date for the shipment of products already paid for is beyond 20 days from the date of acceptance of the order, DESA will not guarantee the reservation of the products until 20 days before the requested delivery date, unless there is availability of the products on that date.
6. Prices
The prices indicated on the DESA website are purely indicative and do not constitute a binding commitment for sale. The actual selling price will be the one specified in the order receipt or order confirmation. DESA reserves the right to modify prices and discounts at any time and without notice.
For sales made to customers residing in San Marino, in accordance with D.M. 24.12.1993, it is mandatory to return a copy of the invoice, duly validated by the San Marino Tax Office, to the registered office of DESA within four months from the date of transfer of the goods. In the absence of such documentation, the event will be reported to the competent authorities in accordance with the same legislation.
Furthermore, DESA reserves the right to cancel any order in which a price has been erroneously published lower than the correct price by a measure equal to or greater than 10%, or in an amount clearly insignificant or recognizable as an error, for any reason (error in systems, human error, etc.). This also applies in the case of an initial validation of the order. The product will not be delivered unless the buyer decides to proceed with the order anyway, agreeing to pay the correct price.
7. Product Availability
The product catalog available on the website www.desatrade.com, in the "availability" section, displays the quantities of products available in DESA's warehouses, with updates every 5 minutes from 7:00 AM to 6:00 PM. However, it is important to underline that accessing the site and the possibility of submitting orders "online" may change the availability of products in real time. Therefore, DESA cannot guarantee the immediate availability of ordered goods until a sales document is sent via email.
8. Transportation and Risk
Unless otherwise agreed, the supply of goods is understood to be Ex Works (Freeport), even when it is agreed that the shipment or part of it will be managed by DESA. Regardless of the delivery terms agreed upon by the parties, risks pass to the Customer no later than when the goods are handed over to the first carrier. Shipment is carried out by primary carriers selected by DESA or by another entity on its behalf. The cost of transportation is charged to the customer in the invoice unless otherwise agreed between the parties.
The customer has the option to request insurance against transportation risks, the conditions of which are set out in article 11.
9. Retention of Title
It is agreed that the Products delivered remain the property of DESA until full payment has been received. The retention of title extends to Products sold by the Customer to third parties and to the price of such sales, within the maximum limits provided by the law of the Customer’s country governing this clause.
10. Detailed Conditions for the Optional Transport Insurance
The following terms establish the conditions under which DESA offers its customers compensation in case of damage or loss of goods during transport, in accordance with the coverage provided by the subscribed insurance policy: DESA subscribes to transport insurance policies with primary insurance companies, covering the risks during the transportation of goods.
DESA commits to reimbursing its customers for any losses or damages to the transported goods, in accordance with the terms of the subscribed insurance policy, provided that the insurance rate stipulated in this agreement is paid;
The insurance rate is defined as an additional or optional service to the shipping services offered by Desa S.r.l., a service that the customer must explicitly request;
The insurance coverage will be considered valid only when a cost item is charged on the sales invoice, whose percentage is subject to negotiation, but not less than 0.20% of the value of the goods, as an insurance rate payable within the payment terms set for the related sales invoice. In the absence of payment of the agreed insurance rate, indicated on the invoice, the transport will be considered uninsured.
10.1 Optional Insurance Coverage and Compensation Limit
10.1.1 Scope of coverage: the optional insurance coverage service covers all risks of loss or damage to goods during transportation organized by Desa, unless such losses or damage are caused by negligence or misconduct on the part of the Customer;
10.1.2 Compensation: in the event of a claim validated and settled by the Insurance Company, Desa commits to reimbursing the Customer in the form of a replacement product or monetary refund. The compensation will be based on the declared value of the goods indicated on the invoice at the time of shipment;
10.1.3 Maximum compensable limit: the maximum reimbursement for any claim shall not exceed the total value of the transported goods;
10.1.4 Procedure in case of a claim:
Desa, during the shipment of goods subject to insurance coverage, commits to sending via email relevant shipping information to the Customer. This may include, where available, details such as dimensions, volume, and number of packages in the shipment. If specific information is not available, Desa will provide the relevant context shipping information that is actually available at the time of sending.
In the event of a claim, the Customer must notify Desa within 3 working days from the delivery of the goods. The customer must provide all necessary evidence to support the claim for compensation.
10.1.5 Exclusions: the transport insurance service does not cover losses or damages caused by:
- intentional damage;
- normal wear and tear;
- mechanical failures unrelated to transportation.
10.1.6 Deductible: in the event of a claim, a deductible equal to 15% of the damage value will be applied, with a minimum of €1500 (one thousand five hundred euros).
10.2 Limitation of Liability
10.2.1 Non-subscription to the insurance option: if the Customer chooses not to pay the optional insurance rate, Desa shall not be liable for any losses or damages to the goods during transportation.
10.2.2 Specific exclusions: Desa shall not be liable for losses or damages resulting from:
- negligence or misconduct by the Customer or their agents;
- force majeure events, such as natural disasters, acts of terrorism, wars, riots, and similar circumstances beyond Desa's control;
- natural deterioration, wear and tear, or inherent defects in the transported goods.
10.2.3 Limitations of liability: Desa shall not be liable for losses or damage to the transported goods that do not fall within the scope of the optional insurance coverage defined in article 10.1.
If, notwithstanding the above exclusions, Desa is found liable for losses or damages, such liability shall be limited to the terms and limits of compensation defined in the aforementioned sections of this contract.
10.2.4 Failure to sign with reservation: if the Customer receives the goods without specifically signing for reservations on the transport document, it is presumed that the goods have been delivered in good condition and in accordance with expectations. Consequently, Desa shall not be responsible for any claims relating to non-visible damages or losses not properly reported at the time of delivery.
Where the customer requests to appoint their own carrier, the shipment is carried out on a freight collect basis, and the risk of loss (due to theft or misplacement) and/or damage to the goods transfers to the customer upon delivery to the carrier from DESA's warehouses.
11. Payments
Goods supplied by DESA must be paid via irrevocable, advance, and confirmed bank transfer. Any different payment conditions must be agreed upon and formalized in writing with DESA. The bank details for making transfers will be indicated on the sales documents. DESA reserves the right, at its sole discretion, not to proceed with the shipment of goods, even following the acceptance of the order, in the case of customers who are in a condition of "out of trust", or in situations of "non-payment", "dispute", or in case of a non-irrevocable and/or unconfirmed bank transfer.
12. Obligations for Financial Flow Traceability - art. 3 L. 136/2010
DESA operates in compliance with the obligations set out in art. 3 of Law no. 136/2010 as amended by articles 8 and 9 of Legislative Decree no. 187/2010, to ensure the traceability of financial movements relating to public services and supplies. The customer - in the case where the order concerns the execution, under any title, of a contract subject to the scope of application of Law no. 136/2010 and subsequent amendments - must comply with all the provisions of such law, expressly indicating the identification code of the tender (CIG) or, where required by law, the unique project code (CUP) as well as the references of the Contracting Authority, lending all necessary cooperation to enable DESA to correctly fulfill the legal obligations. The customer must pay for the goods supplied exclusively with instruments suitable to guarantee full traceability of the operation towards DESA, as provided for in this Article 10. The violation of the provisions of this article and/or the prescriptions of art. 3 of Law no. 136/2010 and subsequent amendments will result, according to the law, in the automatic resolution of individual orders.
13. Cancellation of Orders
The customer may request the cancellation of the order or part of it; DESA reserves the right to accept the cancellation of the same. The request for cancellation (and its acceptance) must occur through written communication via email.
14. Return of Goods
The procedure for returning goods to DESA must be initiated through the completion of an online form, in which the reasons for the return and the references of the invoices and/or the Delivery Note (DDT) must be specified. This procedure requires express authorization from DESA personnel. Once authorization is obtained, which includes the assignment of a "return number," the goods must be returned within 10 business days from the date of approval of the return request.
Deductions in the value of the returned goods are foreseen in the following cases:
If the product, although intact (sealed), is deemed by the unquestionable judgment of DESA as a "end-of-life product" (no longer reorderable from our supplier) or a "back-to-back product" (specifically purchased upon customer's order) at the time of the return request.
If the product is declared open.
If the product is declared unopened in the online form but is found to be open.
If the goods arrive at DESA beyond the 10 business days from the issuance of the return authorization.
The returned goods must be in perfect condition, in the original packaging, and shipped carriage paid to our warehouse. It is necessary to cite the assigned return number on the shipping document.
15. Complaints
Any shipping errors or material shortages must be reported, in written form and accompanied by appropriate video and/or photographic support, according to the methods and terms indicated in article 10.
16. Warranties
The purchase of products from DESA implies unconditional acceptance of the warranty conditions established by the manufacturer, which are independent of DESA's will. The customer, therefore, acknowledges and accepts that the warranty on the purchased products is provided directly by the manufacturer according to its established conditions. This acceptance includes, purely by way of example, the acceptance of the warranty management procedures, which might be entrusted to a party other than DESA.
17. Export Restrictions
The customer undertakes to comply with all laws and regulations on export, restrictions, economic sanctions, and embargoes established by the European Union, the United Nations, the United States of America, the United Kingdom, Switzerland, and any other competent jurisdiction regarding the products, including the control regime on defense materials and dual-use products, and any other law and/or regulation prohibiting or limiting the export, re-export, or transfer of products, technology, data, or services, directly or indirectly to, or for, certain countries, uses, or end-users.
The customer declares and warrants that, prior to any purchase of products, they will be required to read the existing limitations and requirements for their marketing and use, and acknowledges that by proceeding with the purchase, they agree to fulfill the obligations arising from the same.
The customer declares and guarantees that they will purchase the products exclusively for those activities, users, and territories in relation to which the resale of the products does not require DESA to obtain any license, permission, or authorization, in accordance with the laws and regulations applicable to the marketing of the products.
The customer commits to: (i) maintain adequate documentation of their activities and contractual relations with their clients; (ii) provide, upon simple request of DESA, documents, reports, and files generated by any system tools; (iii) grant access to DESA or its appointees, whenever reasonably requested by the latter, to their facilities and documentary archives for the purpose of verifying the customer’s (and their clients') compliance with the obligations set forth in this article, even if this occurs at the indication of manufacturers or national or foreign authorities; (iv) ensure that their clients are bound by written conditions that commit them to respect obligations equivalent to those undertaken by the customer under this article.
The fulfillment of the aforementioned obligations by the customer is essential for DESA; should the customer fail to respect the obligations of this article, the customer shall indemnify DESA for all damages, costs, charges, and expenses that may arise to the same from the customer's violation of such obligations and recognizes that DESA will have the right to suspend and/or terminate any agreement entered into with the customer without any penalties or obligations of compensation arising for the same.
“No re-export to Russia” clause
1. The Customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this Agreement that fall under the scope of Article 12g of Council Regulation (EU) No 833/2014.
2. The Customer shall undertake its best efforts to ensure that the purpose of paragraph 1. is not frustrated by any third parties further down the commercial chain, including by possible resellers.
3. The Customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph 1.
4. Any violation of paragraphs 1., 2. or 3. shall constitute a material breach of an essential element of this Agreement, and DESA shall be entitled to seek appropriate remedies, including, but not limited to:
a. termination of this Agreement; and
b. cancellation of any pending order, and
c. a penalty of 80% of the total value of price of the goods exported.
5. The Customer shall immediately inform DESA about any problems in applying paragraphs 1., 2. or 3., including any relevant activities by third parties that could frustrate the purpose of paragraph 1. . The Customer shall make available to DESA information concerning compliance with the obligations under paragraph 1., 2. and 3. within two weeks of the simple request of such information.
18. Legislative Decree 231/2001 and Anti-Corruption Legislation
Each party declares to be aware of the provisions of Legislative Decree 231/2001 (the Decree) and commits to base their behavior, aimed at the implementation of the contract, on principles of transparency and fairness.
Each party declares to have adopted and effectively implemented corporate procedures and behavioral rules suitable to prevent the commission of crimes foreseen by Legislative Decree 231/2001 and undertakes to keep them effectively implemented for the entire duration of the contractual relationship.
The list of crimes referred to in Legislative Decree 231/2001 is exhaustive but may be expanded in the future, and this clause will be automatically extended to all the crimes contemplated in the Decree introduced even after the date of signing the contract.
The customer also commits to comply with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and any other relevant legislation in the jurisdictions where the customer operates, purchases, sells, distributes, delivers products, or services.
19. Disputes
In the event a dispute shall arise between the parties to this Agreement, it is hereby agreed that the dispute shall be referred to Vienna International Arbitral Centre. The arbitrator’s decision shall be final and legally binding and judgment be entered thereon. Each party shall be responsible for its share of the arbitration fees in accordance with the applicable Rules of Arbitration. In the event a party fails to proceed with arbitration, unsuccessfully challenged the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to costs of suit, including reasonable attorney’s fee for having to compel arbitration or defend or enforce award.
20. Amendments to These General Conditions
The general conditions contained in this document may be modified without any notice and shall be effective from the date of publication on the website www.desatrade.com.
21. Applicable Law
The present sales relationship is governed by the Vienna Convention on the Sale of International Goods and, for matters not covered by the Convention, by the principles of law generally recognized in international trade as applicable to international sales contracts together with the UNIDROIT Principles on International Commercial Contracts.
22. Personal Data Processing
Where the customer communicates to DESA personal data of third parties for the purpose of executing the order (for example, in the case of using the "dropshipment" service, which consists of the direct shipping of goods from DESA's warehouses to third parties), in compliance with the current regulations on the protection of personal data, DESA, as the Data Controller, undertakes to process such personal data solely for the purpose of executing the Order for the duration of the commercial relationship between the customer and DESA and in any case according to the retention periods prescribed by law and any contractual obligations between DESA and the supplier of goods and services.
Therefore, DESA guarantees to:
-Fulfill all necessary requirements for compliance with existing provisions and scrupulously observe what is stipulated therein, including the regular maintenance of the register of processing activities carried out on behalf of the customer;
-Assist and cooperate with the customer in fulfilling the customer's legislative obligations related to the personal data processed by DESA on behalf of the customer, including technical and organizational measures to ensure the exercise of the rights of the data subjects;
-Adopt and maintain in operation security measures to ensure the availability, confidentiality, and integrity of the data in question;
-Cease any use and delete personal data processed on behalf of the customer upon the definitive termination of the relationship, subject to legal prescriptions and contractual requests from suppliers of goods and services;
-Immediately provide notice, in the event a data subject approaches DESA to exercise a right or makes a complaint of a violation, to the customer and not respond to the data subject, except under different instructions from the customer;
-Communicate to the customer without undue delay any occurred or supposed violation of personal data for the purposes of recording/notification/reporting of “data breaches”;
-Make available to the customer all information necessary to demonstrate compliance with current regulations in response to a request from the competent Authority.
-All services provided by DESA are delivered through the use of infrastructures managed by the DESA organization, at locations or servers located in the European Union.
These conditions are valid from June 1, 2022
Specific approval of the restrictive clauses
Pursuant to and for the purposes of Article 1341 of the Civil Code, the Customer declares to have carefully read the above general conditions of sale in all their points and, after careful rereading, to have expressly accepted all the clauses, including specifically the following restrictive clauses: Art. 3 (“Liability”); Art. 5 (“Orders”); Art. 6 (“Prices”); Art. 7 (“Availability of Products”); Art. 8 (“Transportation and Risks”); Art. 9 (“Retention of Title”); Art. 11 (“Payments”); Art. 12 (“Obligations of Traceability of Financial Flows - art. 3 L. 136/2010”); Art. 14 (“Return of Goods”); Art. 15 (“Complaints”); Art. 16 (“Warranties”); Art. 17 (“Export Restrictions”); Art. 19 (“Disputes”); Art. 20 (“Amendments to these General Conditions”).