Article 1 – Definitions
“Parties” shall mean “Seller” and “Buyer” hereinafter referred to also as “Purchaser”;
“Seller” shall mean TECNO MECCANICA S.R.L.;
“Buyer” or “Purchaser” shall mean the Party that purchases the products indicated in the Purchase order.
Article 2 – General provisions
a. These General Sales Terms and Conditions are integral part of the agreements stipulated between Seller and Buyer for the supply of the Products of the Seller. Seller shall mean TECNO MECCANICA S.R.L.
b. The General Sales Terms and Conditions are published on the catalogues and on the www.flytekitalia.com website; they shall be expressly reported in the Order confirmation and shall be binding for the contracting parties. The General Sales Terms and Conditions, published as indicated above, shall apply in any case, with binding effect, to all the commercial transactions occurring between Seller and Buyer, even if not explicitly reported in the Order confirmation.
c. The Seller reserves the right to change or integrate at any time the General Sales Terms and Conditions, by notice in writing to be delivered to the Buyer in any way whatsoever.
Article 3 – Proposals and Orders
a. As far as quantity, price, and delivery date are concerned, the Seller’s purchase proposals and recommendations included in the catalogues, brochures, price lists, or similar instruments are always subject to change and therefore, not binding unless expressly indicated in the Order confirmation.
b. The orders made by the Buyer shall not be considered accepted, and therefore, are not binding for the Seller, until formally accepted in writing by the Seller through Order confirmation sent to the Buyer, signed by this latter for acceptance, and returned to the Seller to the following email address firstname.lastname@example.org, or once the period of seven days from the sending date of the Order confirmation has expired.
c. The Orders made verbally or by telephone shall be valid and effective if confirmed in writing by the Buyer; in the event that the Orders are not returned signed to the following email address email@example.com, they shall be considered implicitly accepted 24 hours after they have been made.
Article 4 – Products: characteristics and changes
a. The Seller has the right to make changes to the Products and components, in case they are considered necessary or appropriate, until the supply is completed.
b. The technical and commercial documents are intellectual property of the Seller, and any use not strictly indented for the use of the sold Product, is prohibited; the reproduction of technical documents it is also prohibited, unless otherwise specifically authorised by the Seller. The Seller reserves the right to change the content of the technical and commercial documents in case of updating.
c. The photos of the products may not perfectly represent their characteristics, but differ for colour, dimensions, and accessory products represented. All purchase support information is to be intended simply as generic information material not referable to the actual characteristics of a single product.
Article 5 – Delivery terms of the Products
a. Unless otherwise expressly and specifically authorised in writing by the Seller, all the sold Products are delivered “ex works” and the delivery address shall be indicated in the Order confirmation.
b. If not otherwise agreed in writing by the Parties, any delivery terms reported in the Order confirmation are purely indicative and not binding for the Seller. Partial deliveries of the Products are allowed. Any impossibility or delay in performing a partial supply shall not entitle the Buyer to terminate the agreement relative to the entire supply, or to any compensation for damages.
c. The Seller shall not be obliged to accept “returned” Products, unless otherwise agreed in writing.
d. In case the Purchaser shall not collect the products ready to be delivered within 15 (fifteen) days from the date of receipt of the “goods ready” notice, the Seller shall have the right to ship and stock the Products not collected. In this case, all the costs relative to the shipment and stocking of the Products not collected shall be at The Purchaser’s charge. The Purchaser shall not have the right to delay or withhold the payment of the Products not collected and/or stocked.
e. In case of considerable delay – more 90 days – in the delivery of the Products, imputable to the Seller and not due to force majeure – such as strikes, lockouts, road blocks, Public Authority provisions, and similar causes – the Buyer, on prior formal notice to be sent to Seller through registered letter with return receipt, shall be entitled to compensation for any damages proven, from the same Seller, up to a compulsory maximum of 5% of the value of the late delivered goods.
Article 6 – Force Majeure
a. Both the Seller and the Buyer shall have the right to suspend the performance of their respective contractual obligations, in the event that said performance is rendered impossible or excessively onerous by an event beyond their control, such as, including but not limited to, natural disasters, strikes, lockouts, boycott, fire, war declared or not, civil war, revolt or revolution, requisition, embargo, power failures, and any other direct and indirect consequences deriving from said events, and that may affect the possibility of realisation of the products provided for by the agreement.
b. The Party that intends to suspend its contractual obligations shall inform the other Party in writing about the occurrence of the force majeure events; in case the suspension due to force majeure shall last more than 45 days from said notice, each Party shall be entitled to terminate the agreement on written notice to be sent to the other Party at least 10 days before;
Article 7 – Acceptance of the Products - Claims
a. At the moment of acceptance or receipt of the products, the Buyer shall verify the quantity and packaging and shall record any the reservation on the delivery note; moreover, the Buyer shall verify that the products comply with the Order confirmation and shall record any discrepancy on the delivery note;
b. The Purchaser shall examine the Products as soon as they arrive at their destination and, in case of defects, lacks, or non-compliances, it shall send a written communication, to be notified to the Seller within 7 (seven) days from the receipt or delivery of the products. In case deliveries are carried out by currier, if the Products are damaged or defected at the moment of the delivery, the Purchaser shall formalise the complaint about the Products, directly to the currier.
c. all the products not subject to reservation on the delivery notes or on receipt, shall be considered approved and accepted by the Buyer;
d. for all the products subject to reservation on the delivery notes or on receipt, the Buyer shall send to the Seller registered letter with return receipt or Certified Email with the complaint for the goods, within and not over seven days from the delivery date;
e. in case of hidden defects, that is, those that are not immediately identifiable at the moment of the delivery, the Buyer shall send written complaint through registered letter with return receipt or Certified Email, within seven days from the identification of the same defects, and, however not over 12 months from the delivery;
f. even in case of claims and complaints, the Buyer, shall not be authorised to suspend or delay the payment of the delivered products, not even for those considered defected or non-compliant by the same Buyer.
Article 8 – Prices and payment terms and conditions
a. The prices of the products are not inclusive of VAT, which shall be paid as specified in the invoice.
b. The prices of the products are not inclusive of taxes, duties, shipment costs, insurance, installation, and end users training;
c. in case of delayed payments, default interests calculated at the European Central Bank official rate increased of 7 points shall be applied, starting from the date on which the payment should have been made;
d. in case the Parties have not specified the payment terms and conditions in the sales documents, the payment shall be intended as “direct upon delivery” and shall be carried out immediately at the moment of the delivery of the products, which shall be delivered only on presentation of the proof of the wire transfer carried out by the Buyer and when the paid amount shall be available for the Seller at the relative Italian bank.
Article 9 – Warranty. Scope of application and exclusions
a. the Seller guarantees that the products are free from defects and in compliance with the technical specifications declared by the same Seller.
b. the Warranty shall be applied only on the products used and installed by technical personnel certified to operate in environments and for applications compliant and consistent with the technical specifications declared by the Seller; any improper use is prohibited.
c. Warranties shall be expressly excluded in case of defects and damages deriving from improper assembly of the Products, intentional or unintentional tampering, improper maintenance, changes or repairs carried out by unauthorised personnel, negligence or incompetence of the assemblers.
d. the Warranty shall not apply if the defect or anomaly results from uses and applications incorrect or inadequate to the Product, or if the same Product shall not be compliant with the start-up.
e. the Warranty has a validity of 1 year (12 months) from the delivery date of the Products. The Seller agrees to remedy any defect, lack of quality, or compliance defect of the products imputable to the same Seller and that occurred within 12 months from the delivery date of the products, as long as the Buyer has promptly provided notice of defects through registered letter with return receipt pursuant to Article 5.
f. the Seller shall not guarantee the compliance of the products to particular specifications or technical characteristics or their suitability to specific uses, unless said characteristics have been expressly agreed in writing in the sales documents.
g. the Seller shall not replace the Products or part of them at the Purchaser’s facilities or in the place where the Products are located, nor is he obliged to send a technician at the Purchaser’s facilities or to the place where the Products are located; liability to compensation for damages is expressly excluded in case of damages, loss of income, recall campaigns of the defective products, or similar liabilities.
h.the Seller’s liability is in any case excluded, and therefore, the Warranty on the Products (Espresso Coffee Machines and accessories) shall not apply in the following cases: 1. Limescale damages caused by the use of water with hardness exceeding 5° F. 2. Failure to perform ordinary maintenance; 3. Handling of the product; 4. Damages caused by power surge; 5. Aesthetic damages not contested at the moment of the delivery of the products; 6. Damages to the parts for the flowing of water; 7. Damages caused by incorrect use of the Product and however, by a use non-compliant with the use provisions included in the manual supplied by the Seller.
Article 10 – Retention of title
a. The products delivered shall remain the property of the Seller, until full payment of the price, and therefore, the Buyer shall keep, store, and protect the Products, or install them as trustee, with all the obligations connected with the possession and use, holding the Seller harmless from any liability. Retention of title shall be extended also to the Products sold by the Buyer to Third parties.
b. In the event that in the country of residence of the Buyer, for the legal validity of the retention of title, administrative or legal formalities such as registration in Public Registries shall be necessary, the Buyer agrees to facilitate the relative necessary procedures.
Article 11 - Intellectual Propriety
a. The Buyer expressly agrees that the trademarks, distinctive signs, and commercial names present on the Products shall be exclusive property of TECNO MECCANICA S.R.L. and shall not be removed, cancelled, altered, or changed. The Buyer shall have only the right to use the trademarks, distinctive signs, and commercial names, as well as the “Know How” regarding the Products – that in any case shall remain exclusive property of the Seller – for the only purpose of selling the goods to Third parties;
b. The documents, drawings, data, and information that shall be delivered to the Buyer for a better representation of the products, shall remain exclusive property of the Seller and any other use is prohibited;
Article 12 – Personal Data Processing
The Seller is the Data Controller of the Buyer’s personal data processing and said data shall be collected and processed exclusively for the performance of the Commercial Transaction, in accordance with the Italian law for the processing of personal data (Legislative Decree 196/2003 and following amendments). The Buyer shall have the right to request the Seller the updating, integration, correction, deletion, and transformation into an anonymous form of data.
Article 13 – Applicable Law
The applicable law is the Italian one. In case the Buyer has its headquarters in another Country, the Parties may agree if necessary, to apply the UN Convention (Vienna Convention) on contracts for the international sale of goods of 11 April 1980.
Article 14 – Jurisdiction
Any dispute that should arise between the Parties regarding the interpretation, validity, or execution of these General Sales Terms and Conditions, as well as of the single sales agreements shall be referred to the exclusive jurisdiction of the Court of Pistoia. Said jurisdiction can be changed only by the Seller.
Article 15 – Final provisions
a. Any partial or total invalidity of single provisions within these General Sales Terms and Conditions shall not affect the validity of the remaining provisions;
b. These General Sales Terms and Conditions are written in Italian, as well as in other languages; in case of doubt regarding their interpretation, the Italian version shall apply.