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Products may only be returned to us with our prior agreement, at your expense, and according to our directions. Any products returned in contravention of this Section will not be the subject of any refunds or replacements and you will continue to be liable for payment of the price of such products. Where you return products to us in accordance with the provisions of this Section, and in our reasonable opinion those products do not conform with the warranties set out in Section , then you will be entitled to replacement products where replacements are available or, where we agree, a refund of the price paid in respect of those products including all delivery charges.
If you cancel a contract and are entitled to a refund, we will usually refund any money received from you using the same method originally used by you to pay for your purchase. We will process the refund due to you as soon as possible and, in any event, within 30 days of the day we received your valid notice of cancellation.
Where a force majeure event gives rise to a failure or delay in us performing our obligations under these terms of sale, those obligations will be suspended for the duration of the force majeure event. If we become aware of a force majeure event which gives rise to, or which is likely to give rise to, any failure or delay in us performing our obligations under these terms of sale, we will notify you forthwith.
We will take reasonable steps to mitigate the effects of the any force majeure event. Nothing in the terms of sale will: a limit or exclude the liability of a party for death or personal injury resulting from negligence; b limit or exclude the liability of a party for fraud or fraudulent. The limitations and exclusions of liability set out in this Section [and elsewhere in the terms of sale]: a are subject to the preceding paragraph; b govern all liabilities arising under the terms of sale or in relation to the subject matter of the terms of sale, including liabilities arising in contract, in tort including negligence and for breach of statutory duty.
We will not be liable to you in respect of any losses arising out of a force majeure event. We will not be liable to you in respect of any business losses, such as loss of or damage to profits, income, revenue, use, production, anticipated savings, business, contracts, commercial opportunities or goodwill.
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If you are a business customer, we will not be liable to you in respect of any special, indirect or consequential loss or damage. If you are a business customer,] our aggregate liability to you under the terms of sale will not exceed the greater of: a [ amount ]; and b the total amount paid or if greater payable by you to us under the terms of sale. If you are a business customer, you hereby indemnify us and undertake to keep us indemnified against all and any liabilities, losses, damages, expenses and costs including legal expenses and amounts paid in settlement of any demand, action or claim arising, directly or indirectly, out of a breach by you of any of your obligations under these terms of sale.
We may cancel a contract to supply products made under these terms of sale immediately by written notice to you if you fail to pay, on time and in full, any amount due to us under the contract, or commit any material breach of your obligations to us under the contract. If you are a business customer, we may cancel a contract to supply products made under these terms of sale if:. Upon the cancellation of a contract in accordance with Section :.
Contracts under these terms of sale may only be varied by an instrument in writing signed by both you and us. We may revise these terms of sale from time-to-time, but such revisions will not affect the terms of any contracts which we have entered into with you.
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If any provision of these terms of sale is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and such invalid or unenforceable provisions or portion thereof will be deemed omitted. No waiver of any provision of these terms of sale, whether by conduct or otherwise, in any one or more instances, will be deemed to be, or be construed as, a further or continuing waiver of that provision or any other provision of these terms of sale.
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You may not assign, charge, sub-contract or otherwise transfer any of your rights or obligations arising under these terms of sale. Any attempt by you to do so will be null and void. We may assign, charge, sub-contract or otherwise transfer any of our rights or obligations arising under these terms of sale, at any time — providing where you are a consumer that such action does not serve to reduce the guarantees benefiting you under these terms of sale. Each contract under these terms of sale is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under such contracts is not subject to the consent of any person who is not a party to the relevant contract. Subject to the first paragraph of Section : these terms of sale contain the entire agreement and understanding of the parties in relation to the purchase of products from our website, and supersede all previous agreements and understandings between the parties in relation to the purchase of products from our website; and each party acknowledges that no representations not expressly contained in these terms of sale have been made by or on behalf of the other party in relation to the purchase of products from our website.
On 25 October , the Court denied Seller's request for admission of evidence and ordered Seller to submit its conclusions and requests to the Court. On 16 November , after argument on Plaintiff Seller's conclusions and requests, the Court took the matter under advisement. This Court first notes that the contract dated 23 May , has not been executed by the Buyer.
It can be inferred, therefore, that a contract had been entered between the parties, at least orally. There could be an issue as to the where the contract was concluded as the Buyer did not execute the contract. For this reason, the reference included in the contract that the place of execution was "Montagnana-Montanaro" would be discounted.
It is likely that the parties reached the agreement over the telephone or that the Buyer, upon receiving at its place of business the document memorializing the terms of the agreement executed by the Seller, orally communicated to the Seller its acceptance of the contract. That could explain why Seller does not have the copy executed by the Buyer.
Pursuant to the contract, Buyer would be the exclusive distributor of Seller's goods in the United Kingdom by either purchasing the goods for his own business or on behalf of his customers. Seller, on the other hand, was under contractual obligation to provide Buyer with the goods it would order and, if so requested, install the same, at the location, time and conditions to be agreed upon. It was, thus, a master contract intended to regulate future sales to be performed in the United Kingdom, where the goods were to be delivered and, if so requested, also installed.
Both deliveries of June took place in the United Kingdom, as evidenced by the shipping documents submitted by the Seller. The contract is for the sale and purchase of two amusement rides, which includes a clause allowing the Buyer to return the goods any time within six months of the sale. It also provides that if the goods were not returned during that period, Buyer had to pay the agreed price, regardless of whether the Buyer had been able to sell the goods.
It is not clear also how the parties reached their agreement. It is not clear, however, how [Buyer] accepted the offer, as no supporting documentation has been presented. It is likely the Buyer] accepted the offer, however, considering that the goods had been delivered and installed in the United Kingdom Tamporlay and Durley. Upon lapse of the six-month period, Seller asked Buyer for payment of the goods.
Seller received no answer to his request. It must be first established whether this Court has jurisdiction to hear this case. To this end, this Court must establish which procedural rules apply to this matter. In the instant case, Council Regulation EC 44 of of 22 December , on Jurisdiction and Recognition of Judgments in Civil and Commercial Matters hereinafter "Regulation" which replaced, as of 1 March , the Brussels Convention of on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters [Brussels Convention] except when the matter is brought before a Danish court or the defendant's place of business is located in Denmark applies.
The Regulation, which is legally binding and directly applicable in Italy, as well as in all Member States pursuant to EC Treaty, applies only if several requirements have been met, as also reiterated by foreign case law see, e. Foreign case law must be considered, although not binding, in order to ensure the Regulation's full effect and uniform application throughout the Member States, as the European Court of Justice [ECJ] has indicated in connection with the Brussels Convention see, e.
As to the first requirement, from a temporal standpoint, it would suffice bringing the suit after the Regulation entered into force, as set forth in Article 66, paragraph 1, which is clearly met in the instant case. As to the other requirements, the action must deal with a civil or a commercial matter Article 1, paragraph 1, of the Regulation. The Regulation, similar to the Brussels Convention, does not define the "civil" or "commercial" terms. However, "the terms of that provision should not be interpreted as a mere reference to the internal law of one or [the] other of the States concerned.
It is permissible to reference such case law on this issue, for purposes of ensuring "continuity between the Brussels Convention and this Regulation" as indicated in Recital number 19 of the Regulation.
Herein, there are no doubts that the dispute is a "civil and commercial" matter for the Plaintiff Seller having sought payment of the sum of money for the goods manufactured and supplied. Therefore, since this matter does not fall within the realm of the matters excluded from the scope of application of the Regulation, it is clearly governed by the Regulation. Under the Regulation, similarly to the Brussels Convention, the general criterion for finding a court's jurisdiction is the defendant's domicile. Pursuant to Article 2, paragraph 1, of the Regulation, "subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.
Therefore, the only way this Court could exercise jurisdiction over the matter would be if the dispute falls within one of the grounds for special jurisdiction set forth in the Regulation. Given the nature of the dispute, the ground justifying exercise of jurisdiction of this Court over a defendant not domiciled in Italy would be under the "matters relating to a contract" exception set forth in Article 5, paragraph 1, of the Regulation.
Herein the dispute certainly concerns a "matter relating to a contract" a concept that has not been defined by the Regulation and which is "to be interpreted independently, regard being had to the objectives and general scheme of the Convention, in order to ensure that it is applied uniformly in all the Contracting States; that concept cannot therefore be taken to refer to classification under the relevant national law of the legal relationship in question before the national court.
Similarly, pursuant to case law developed under the Brussels Convention - which, in light of the need for "continuity in the interpretation," can be relied upon for purposes of construing those provisions of the Regulation which track those of the Brussels Convention see, e. This is the case at hand because [Defendant Buyer] freely agreed to pay for the goods delivered to it should it fail to return them within the agreed time.
The issue is, therefore, whether, this Court could exercise jurisdiction pursuant to the special jurisdiction rule set forth in Article 5, paragraph 1, of the Regulation. Both the Regulation and the Brussels Convention allow a plaintiff to sue a defendant in the Member State where the goods were delivered or should have been delivered. The European legislature, solely in connection with those instances falling within the scope of Article 5, paragraph 1 b , establishes ex auctoritate the place of performance of the contractual obligation in connection with contracts for the sale of goods and provision of service and, in doing so, addresses some criticism that arising from the solution taken by the Brussels Convention.
The European legislature, although excepting those instances whereby parties agreed on the jurisdiction issue, established that in connection with contracts for the sale of goods, the place of performance of the obligation is "where, under the contract, the goods were delivered or should have been delivered. In the instant case, it is of no moment that it is about the duty to pay the price.
For purposes of determining whether this Court has jurisdiction, it only matters that the duty to pay the price results from a contract for the sale of goods and that the delivery of the goods is not located abroad. Similar to other concepts mentioned above, the term of "sale of goods" is not defined by the Regulation. In this case it would also not be appropriate to resort to domestic law definitions, which would otherwise impair a uniform application of the Regulation across the Member States. An "autonomous" interpretation must be pursued.
To this end, it would be useful resorting to the CISG, notwithstanding a decision holding the contrary see Tribunale di Rovereto, cited. Resorting to the CISG is proper because the concept that needs to be determined sale of goods is of a substantive nature and, in consideration of the prominent role the CISG plays at the international level and in consideration of its "expansive" nature.
Under CISG Articles 30 and 53, a contract for the sale of goods might be defined as the agreement whereby "the seller must deliver the goods, hand over any documents relating to them and transfer the property in the goods" [CISG Article 30], whereas the buyer "must pay the price for the goods and take delivery of them" [CISG Article 53] see Tribunale di Padova, 11 January , in Rivista di diritto internazionale privato e processuale, , at ; Tribunale di Padova, 25 February , in Giurisprudenza italiana, , at The mere fact that this contract provides not only for the delivery of the goods but also for installing them being the seller under a contractual duty to install the goods , it does not prevent classifying it as contract for sale of goods pursuant to the CISG.
The CISG, in fact, "does not apply to contracts in which the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labor or other services" CISG Article 3 2. In the instant case, there is no indication that the provision of services installment of the goods plays a more substantial role than manufacturing them.
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The value of the goods is greater than the cost for installing them. Therefore, in high-technological evolution sectors and in new and diversified services consumers may not have the specific skills needed to detect and deal with the dangers that are connected with the use thereof. December 20, July 6, October 2, February 19, October 12, April 2, Italiano English.
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