1. SUBJECT
These general conditions govern the contractual sales relationships between the company Sumoto Srl, VAT number IT01646960243, with headquarters in Via Peripoli 1-3, Montecchio Maggiore (VI) and its customers, which are implemented through individual orders and related order confirmations. For the purposes of these general conditions of sale (hereinafter referred to as “Conditions of Sale”), the following terms shall have the meaning attributed to them below:
“Supplier”: Sumoto Srl;
“Purchaser”: any company, corporation or entity purchasing the Products from the Supplier;
“Product(s)”: the goods produced, assembled and/or sold by the Supplier;
“Final Product(s)” means the Buyer’s product into which the Products are incorporated.
2. EFFECTIVENESS OF THE CONDITIONS OF SALE
These Conditions of Sale apply even if not expressly referred to and signed in individual orders.
Any provisions derogating from what is set out herein will be effective only if expressly accepted in writing by the parties.
These Conditions of Sale are effective until they are expressly revoked by the Supplier or are replaced by new conditions which will become effective upon their signing.
3. CONCLUSION OF THE CONTRACT
The contract is considered concluded when the Buyer receives the Supplier’s written order confirmation, or if the Supplier, even without express acceptance, begins the performance of the service, immediately fulfilling the order. The place of conclusion of the contract is always intended to be the Supplier’s headquarters. Orders and/or changes to orders made verbally or by telephone, to be effective, must be confirmed in writing by the Buyer.
4. DELIVERY
The delivery date of the Products is the one indicated in the written order confirmation. If the Buyer refuses to receive the Products made available to him with the aforementioned methods, the Supplier will still be entitled to payment of the agreed price, after issuing the relevant invoice. In the event of failure to collect the Products within five days of the date of making them available, the Supplier has the right to deposit the Products in a warehouse, at the risk and expense of the Buyer. In this case, in derogation of art. 1766 of the Civil Code, the Supplier cannot be held liable for any obligation of custody, therefore the risk of loss and damage to the goods falls entirely on the Buyer.
The Supplier reserves the right to extend the delivery terms, without being in any way obliged to pay any compensation in the following cases:
a) causes of force majeure such as, by way of example, strikes, lack or insufficiency of driving force, fire in the Supplier’s premises and/or any other event not attributable to the latter;
b) deficiencies, inaccuracies or delays by the Buyer in transmitting the information necessary for the execution of the order;
c) any changes accepted by the Supplier after receipt of the order;
d) difficulties in supplying raw materials;
e) delays by the forwarder.
5. TERMS
Given the complexity of the work, the terms of preparation, shipment or delivery, however agreed, are not peremptory or essential, but must be considered purely indicative and not binding for the Supplier. Any delays in deliveries cannot therefore give rise to penalties, compensation for damages, accrual of interest, or termination, even partial, of the contract by the Supplier. In the event that the Supplier must postpone delivery of the Products with respect to the expected deadline, at the request of the Buyer or for reasons even indirectly attributable to him, all possible additional costs, such as storage, handling and transport, etc., shall be borne by the Buyer.
6. TRANSPORT AND PACKAGING
The Products are delivered according to the Incoterms indicated in the order confirmation – Incoterms in their most recent version published by the International Chamber of Commerce – The Buyer is responsible for the customs clearance of the Products and any and all ancillary operations connected to it. The Supplier carries out the packaging for the shipment of the Products in the form deemed most appropriate and is not liable for any damage, breakage, tampering or shortages that may occur after they leave its warehouses. The packaging is made according to experience of use, except for specific requests made by the Buyer, which must be expressly indicated in writing in the order. The Supplier is exempt from any liability in the event of loss and damage of the Products caused by inaccurate transport or handling.
7. PRODUCT DEFECTS AND WARRANTY
The warranty is 12 months and starts from the moment of sale. The Supplier guarantees that the Products comply with the technical specifications communicated.
Complaints made by the Buyer for defects or faults in the Products supplied must be made in writing by letter, registered letter, email or brought to the attention of the Supplier within eight (8) days of delivery of the Products, under penalty of forfeiture of all rights.
The document must include all the details necessary for an immediate assessment of the defects, including at least the following:
a) the serial number of the Products involved;
b) identification of the relevant purchase order, batch number and/or transport document;
c) detailed description of the problem;
d) detailed description of the place and working conditions where the problem occurred;
e) contact details of the contact person;
f) photos or videos showing the defects and the Supplier’s label affixed to the affected products.
If the complaint submitted in the manner indicated above proves to be well-founded, the Supplier will proceed at its discretion, within a term to be agreed, to refund the sum paid, to repair or replace, within the limits of its contingent warehouse availability, the defective Products.
It is specified that, except in the case of fraud or gross negligence, the Supplier will be held, in the event of well-founded defects, lack of quality or lack of conformity of the Products, only to return the sum paid, to repair the same or to supply Products to replace the defective ones within the limits of its contingent warehouse availability. It is understood that the aforementioned guarantee is absorbent and substitute for the guarantees or responsibilities provided by law and excludes any other liability of the Supplier (both contractual and extra-contractual) in any way originating from the Products supplied (e.g. compensation for damages, loss of earnings, recall campaigns, etc.).
However, the costs for shipping the product to the Seller and for returning it to the Buyer are expressly excluded from the guarantee, as well as any intervention costs incurred directly or indirectly by the Buyer for the dismantling and reassembly of the defective product or for any intervention costs of third parties appointed by the Buyer to provide for the management of the defect that has emerged in any capacity (e.g. maintenance or technical assistance companies appointed by the Buyer).
The Supplier reserves the right to return the disputed supply.
The Supplier reserves the right to examine the validity of complaints. If they prove to be unfounded, the Supplier may charge the costs of the inspection to the Buyer. Complaints or disputes, even if acknowledged by the Supplier, do not give the Buyer the right to delay or suspend payments.
The warranty does not cover any of the following circumstances:
a) loss or damage to the Products during shipment or transportation;
b) removal of the identification label affixed to each product;
c) inadequate or poor performance of the Products for use in Buyer’s End Products;
d) failures or damages caused by mismanagement and/or incorrect correspondence of the Products with the other components of the Buyer’s Final Products or by any other cause not related to an original defect of the Products;
e) failures or damages occurring as a result of the Supplier’s compliance with specific instructions or requests from the Buyer;
f) failures or damages resulting from improper or careless storage, assembly, installation, use or maintenance of the Products and/or the Buyer’s Final Products or from abnormal operating conditions (including, without limitation, excessive physical or electrical stress, operation beyond the expected capacities, overload, etc.) or, in any case, from failure to comply with any indication contained in the technical documentation attached to the Products or otherwise provided by the Supplier;
g) failures or damage resulting from modifications, alterations, repairs or replacements of the Products carried out by the Buyer or third parties or from the use of spare parts, components, accessories and/or consumables (e.g. oil, lubricants, detergents, etc.) which are not original or approved by the Supplier in writing;
h) failures or damages caused by unforeseen events or force majeure, environmental factors, negligence or incompetence of the Buyer or third parties;
i) failures or damages caused or aggravated by further use of the Products once the defect or non-conformity becomes apparent;
j) parts subject to adjustment or replacement during normal preventive maintenance (e.g. filters, bulbs, etc.)
k) normal wear and tear, to be assessed in relation to the actual conditions of use of the Products;
l) failure by the Buyer to comply, in part or in full, with its payment obligations towards the Supplier.
The Supplier’s liability for damages to persons resulting from accidents of any nature caused by defective Products shall be limited to that which is deriving from the law (in the United States, punitive damages are excluded).
Any disputes regarding a single delivery do not exempt the Buyer from the obligation to collect the remaining quantity of products provided for by the specific order, or by other orders separate from the one in question.
If the Product has defects that are not guaranteed, the Supplier will send the Buyer a quote for repair or replacement. The Buyer has eight days from the communication of the quote to communicate, via email, whether or not he wants to proceed. After this period, if the Supplier does not receive any response, he will proceed to scrap the Product.
8. RETURNS OF GOODS
The Supplier does not accept returns of goods unless previously authorized by the same in writing. The products must, in any case, be intact (not dismantled), packaged (possibly in the original packaging) and accompanied by a return slip and the documentation requested in point 7 (relevant for the purposes of the return), with the Buyer assuming all costs and risks. Returns must be sent to the Supplier’s test center at the Italian headquarters in order to allow verification of the complaint by the Supplier. Shipping costs will be reimbursed to the Buyer only if the Supplier accepts the return.
9. PRICE
Quotations are not binding. A quotation is considered accepted only upon our written confirmation of the order, after having fully clarified all technical and commercial details.
The price to which the parties refer, for the purposes of these Conditions of Sale, is that expressly indicated in the order confirmation sent by the Supplier to the Buyer. Catalogues, price lists or other promotional material constitute only an indication of the type of Products and the price and the information, including technical information, indicated therein is not binding for the Supplier and may be changed without prior notice. If during the course of the supply there are increases in materials, labor or other cost elements, the Supplier reserves the right to adjust the prices starting from the dates on which such increases occurred, after prior notice to the Buyer.
10. PAYMENT
The Buyer is not authorized to make any deductions from the agreed price (e.g. in the event of alleged defects in the Products), unless previously agreed in writing with the Supplier.
Payment must be made within the terms and conditions indicated in the order confirmation or in the sales invoice. Payment is considered valid if made directly to the Supplier at its headquarters or to the bank details indicated in the order confirmation, in any case, in the currency and forms indicated in the invoice. Any payment made in a place and manner other than that agreed upon will not be considered valid by the Supplier. In the case of payment made by letter of credit, payment shall be deemed to be made at an Italian bank. Any delay in payment will result in the charging of default interest equal to the official discount rate applied by the European Central Bank increased by five points. In derogation of Legislative Decree 9 October 2002 n.231 we establish that the accrual of default interest is not automatic; such shall take effect only with formal default of the debtor. Furthermore, in the event of non-payment by the Purchaser of even a single installment, the Supplier, at its discretion, may modify the terms and methods of payment relating to supplies and/or orders still in progress, or may suspend the fulfillment of its obligations until full payment of the price (principal plus interest and expenses) by the Purchaser, or may cancel them without the Purchaser being able to advance requests for compensation or reimbursement of any kind, without prejudice to any and all rights of the Supplier to obtain from the Purchaser compensation for any damage, cost and expense incurred by the Supplier. In any case, the Supplier reserves the right to terminate the contract ipso iure by written notice to the Purchaser, without the need for formal notice, as well as to take action against the Purchaser for payment of the amount due and compensation for damages suffered. If the obligation to pay the price remains unfulfilled, pursuant to this clause, the Supplier shall be entitled to have the Products sold on behalf and at the expense of the buyer, giving notice to the buyer of the time and place where the sale will be carried out. If payment is made by documentary credit, the documents shall be in English regardless of the nationality of the contractor.
11. RETENTION OF TITLE
In the event of a sale with deferred payment, the Buyer acquires ownership of the Products only after the last installment of the price has been paid, assuming however the risk of total and partial loss of the Products from the moment of delivery. The assumption of risk also concerns theft, fire or fortuitous event that may cause total or partial loss of the Products. The payment for the Products must therefore be made regardless of the circumstance of total or partial loss of the same.
12. RESOLUTION
In the event that the Buyer is subject to bankruptcy proceedings or is known to be in financial difficulty or fails to fulfill any of the contractual obligations, the Supplier may terminate the contract by written notice to the Buyer. In the event of termination of the contract, without prejudice to other rights, the Supplier is entitled to enter the Buyer’s premises, or any place where the Products are located, and to take possession of all or part of the Products. Termination of the contract for any reason whatsoever does not affect the rights acquired by the Supplier up to the time of termination. In the event of termination, the sums already paid will remain acquired by the Supplier on account of the greater sums still owed by the Buyer, without prejudice to compensation for damages and the Products must be immediately returned to the Supplier, at the Supplier’s premises or at a different place indicated by the latter.
Violation of the following obligations constitutes a cause for express termination of the contract:
1) Delayed payment of even a single installment in the case of deferred payment;
2) Failure to collect the goods within the contractually agreed terms;
3) Breach of confidentiality obligations;
4) Violation of intellectual property rights pursuant to art. 15.
13. CONFIDENTIALITY OBLIGATIONS
All information relating to the know-how owned by the Supplier, as well as other corporate and commercial information, which the Buyer will become aware of during the negotiations and execution of the contract must be considered confidential and cannot be used either directly or indirectly by the Buyer, except to the extent necessary for the correct execution of the contract, nor must they be disclosed to third parties. Confidential data includes information relating to the Supplier’s plants, means of production and other company assets, as well as the models and organization of production and services provided by the Supplier, commercial initiatives, customers, management and performance of the Supplier’s company, relationships with third parties and so on. The Buyer undertakes to take all reasonable precautions to keep such information secret, communicating it only to its employees under the obligation of confidentiality.
14. PRODUCT CONFORMITY. IMPROVEMENTS AND MODIFICATIONS
The conformity of the products to samples and/or illustrations present in the price lists, catalogues or similar documents must not be considered in a mandatory sense. In particular, the aesthetic appearance of the products may present differences compared to samples in possession and/or images present in the aforementioned documentation. Furthermore, also with respect to the data and information provided in the aforementioned documentation, the Supplier reserves the right to make all improvements and modifications to its products, including aesthetic ones, deemed appropriate or necessary, without the Buyer being able to raise objections or having the right to terminate any orders in progress and/or claim compensation and/or request reductions in the agreed price.
15. INTELLECTUAL PROPERTY RIGHTS
During the term of the contract and after its termination, the Buyer shall not reveal, publish or disseminate, copy, imitate or use in any way any part of the drawings or technical know-how owned by the Supplier.
The know-how resulting from any product developments or implementations conceived by the Supplier in the execution of this contract are considered to be its exclusive property without the Buyer being able to assert any claim of ownership or economic exploitation or to claim any compensation or indemnity. All costs, damages, expenses and losses suffered by the Supplier as a consequence of any infringement of trademark rights or rights on models and designs or as a consequence of improper disclosure of know-how, connected to this contract or to the use of the Products, are the responsibility of the Buyer. The Buyer is required, without delay, to communicate to the Supplier any news, fact or opinion that may be relevant for the purposes of protecting the rights, trademarks, or rights on models and designs and know-how. The Buyer also exempts the Supplier from liability for any claims made by third parties against the latter and based on the alleged infringement of intellectual or industrial property rights.
16. LANGUAGE
The original version of these Conditions of Sale is in Italian.
17. APPLICABLE LAW
The contract is governed by Italian law.
18. COMPETENT COURT
All disputes relating to the interpretation and execution of the contract are devolved to the exclusive jurisdiction of the Italian Judicial Authority.
of the Vicenza Court.
19. PROTECTION OF PERSONAL DATA
The Buyer declares to have been informed of all the elements provided for in articles 13 and 14 of EU Regulation no. 679/2016 on the protection of personal data and in art. 13 of Legislative Decree no. 196 of 30 June 2003, and gives consent, pursuant to art. 23 of the aforementioned Decree, to the processing of personal/business data in accordance with the law and possibly communicated to third parties and/or transferred to countries within the European Union or to third countries pursuant to articles 42 and 43 of the Decree, in particular to foreign subjects, including non-EU ones, whose collaboration should be necessary. The Buyer expressly authorizes the Supplier to indicate in its advertising material, inserts, newspaper or magazine articles, its name as the purchasing company of the Supplier’s Products.
FINAL CLAUSE
These General Conditions replace and prevail over any previous agreement between Supplier and Buyer.
ONLY FOR ITALY
SPECIFIC APPROVAL
Pursuant to and for the purposes of art. 1341 of the Italian Civil Code, the Buyer declares to have carefully read and expressly approve the following clauses of the general conditions of contract: art. 2: effectiveness of the Conditions of Sale; art. 4: delivery; art. 5: terms; art. 6: transport and packaging; art. 7: defects and product warranty; art. 9: price; art. 10: payment; art. 12: termination; art. 13: confidentiality obligations; art. 14: product conformity. Improvements and modifications; art. 15: intellectual property rights; art. 17: applicable law; art. 18: competent court; art. 19: protection of personal data.