The present terms and conditions (hereinafter “T&Cs”) constitute an integral part of the Offers made by Smartkiosk Italy Srl (hereinafter “Smartkiosk”) to its customers (hereinafter “Customers”) for the sale of Products. The term “Products” shall mean the product(s) specified in Smartkiosk’s Offer. These T&Cs shall prevail on any standard terms and conditions contained in the Customer’s Purchase Orders.
2. Supply of products
Smartkiosk shall supply the Products to the Customer pursuant to the purchase orders issued by the Customer and accepted by Smartkiosk in writing. Purchase orders shall be issued by the Customer at least “X” days prior to the requested delivery date (the number “X” shall be specified in Smartkiosk’s Offer under the heading “lead time”) subject in any case to Smartkiosk ‘ acceptance, and shall state the type and quantity of the ordered Product, supply or spare part (collectively “Goods”), applicable prices pursuant to the Offer, requested delivery dates, shipping instructions and purchase order number. Smartkiosk usually acknowledges purchase orders in writing in 5 to 10 days from receipt. Purchase orders shall not be deemed accepted by Smartkiosk unless and until Smartkiosk has provided its written acceptance to the Customer. Purchase orders accepted by Smartkiosk cannot be cancelled or rescheduled by Customer without Smartkiosk prior written consent.
3. Delivery of goods
The Goods shall be delivered Ex-Works Smartkiosk facility in Pontedera, Italy, as such term is defined by Incoterms 2000. In the event that Customer fails to take delivery of the Goods within three (3) days from the date specified in the purchase order accepted by Smartkiosk (unless such failure is due to a delay in delivery), the Customer shall pay, in addition to the price of the Goods, a fee of five percent (5%) per each month of delay for warehousing costs and financial interests (in lieu of the late payment fee referred to in paragraph 5), and Smartkiosk may issue at any time an invoice to Customer for such price and fee.
4. Passage of title and risk
Title to the Goods shall pass to the Customer upon full payment of the purchase price to Smartkiosk. Risk of loss of the Goods shall pass to the Customer upon Smartkiosk delivery of the Goods to the Customer’s carrier.
5. Terms of payment
An advance payment in the amount as set forth in Smartkiosk Offer shall be made by the Customer promptly on receipt of Smartkiosk acceptance of Customer’s purchase order, and Smartkiosk date of receipt of such advance payment shall constitute the starting point of the lead time for delivery of the Goods as specified in the Offer. Smartkiosk shall issue an invoice to the Customer for the advance payment, and shall be entitled to retain such advance payment in the event that the Customer fails to take delivery of the Goods when delivered by Smartkiosk. Smartkiosk will invoice the Customer for the balance of the purchase price upon delivery of the Goods Ex-Works Smartkiosk facility in Pontedera, Italy. Payment of the balance shall be due within a number of days from the date of invoice as specified in Smartkiosk’s Offer. Invoices shall be issued by Smartkiosk in Euros and shall be paid by the Customer in Euros. Late payments shall bear interest at the Euribor rate in effect at the time payment was due, plus three points, without prejudice to Customer’s obligation to pay on time.
All taxes, duties and governmental assessments in connection with the sale of the Goods hereunder shall be paid by the Customer, except for Italian income taxes imposed upon Smartkiosk.
Smartkiosk shall perform, or have performed by its manufacturing contractors, final quality inspection on the Products at the manufacturing facility before delivery in accordance with Smartkiosk quality procedures. The Customer may attend such inspection, provided it has notified Smartkiosk in writing at least ten (10) working days prior to the scheduled delivery date of its intention to perform such inspection. Any alleged defect found by the Customer upon arrival of the Goods at destination shall not allow the Customer to hold or delay the payments due to Smartkiosk, but shall be treated in accordance with the warranty clause set forth below.
Smartkiosk warrants that title to all Goods delivered hereunder shall be free and clear of all liens, encumbrances, security interests or other claims, and that upon delivery all Goods shall be conforming to the then valid Smartkiosk specifications. Smartkiosk further warrants that the Products shall be free from defects in material and workmanship for a period of twelve (12) months from the date of Smartkiosk invoice, unless otherwise specified in Smartkiosk Offer. Smartkiosk shall repair or replace at its sole option any Products, or the subassemblies thereof, that are confirmed by Smartkiosk to be defective and for which a written warranty claim is made by the Customer within the aforesaid warranty period, provided that the defect is not caused by wear, faults caused by improper use or negligence by the user, unauthorized maintenance or tampering of the Products, accidents or force majeure. Enforcement of the warranty by the Customer is subject to Customer’s compliance with the payment terms and any other contractual condition, including without limitation compliance with the RMA Procedure attached hereto. Before returning to Smartkiosk a Product (or the subassemblies thereof) claimed to be defective, the Customer shall obtain Smartkiosk written authorization, as provided in the RMA Procedure. Returned Products shall be shipped to Smartkiosk in the original packing. In case the original packing will be not available the Customer will be fully responsible of the packaging of the returned goods and actually of damages incurred to the goods because of not appropriate packaging. Cost and risk of transportation of defective Products or subassemblies as well as of repaired or replaced Products or subassemblies shall be on the Customer’s account. Smartkiosk shall not be liable for any direct or indirect, special or consequential damages incurred by the customer as a result of the defect. The above is the sole warranty granted by Smartkiosk as to the Goods, and all other warranties whether express, implied or statutory, including without limitation any warranty as to merchantability, fitness for purpose, are hereby expressly excluded and disclaimed by Smartkiosk.
9. After sale service
Smartkiosk provides yearly Repair Service and on site Assistance plan by at Smartkiosk standard fee. The Customer whereas not purchasing the Service could provide warranty and repair service on the Products to its own customers, unless the Customer is an end user, in which case it shall make arrangements with a service company reasonably acceptable to Smartkiosk to provide such service. Smartkiosk shall make available to the Customer at Smartkiosk standard fees, for a period of three years from the date of delivery of such Products to Customer or until discontinuation of production, whichever comes first, (a) spare parts as necessary to maintain the Products and/or (b) second level repair services at Smartkiosk premises. Lead time for spare parts shall be as specified in Smartkiosk Offer, subject to a purchase plan to be mutually agreed on a yearly basis. Smartkiosk shall use its best commercial efforts to give a six month prior notice of discontinuation of production to those Customers regularly purchasing spare parts and/or repair services, in order to allow such Customers to make a spare parts last buy and/or to acquire second level repair know-how. The Customer shall abide by the RMA Procedure as regards return of Products to Smartkiosk for repair. In the event that the Customer does not take delivery of repaired Products within sixty (60) days after Smartkiosk ready for shipment notice, Smartkiosk shall have the right to dispose of repaired Products as it deems fit.
10. Intellectual property
The sale of Goods does not imply any grant of rights to the Customer to Smartkiosk intellectual property, including any patents, trademarks, copyrights, trade secrets and know-how. The Customer shall not reverse engineer the Goods. Technical information transmitted by Smartkiosk to the Customer on the Goods, including without limitation technical manuals, schematics and service information, as well as information obtained through disassembling of the Goods or visits to Smartkiosk facilities, shall be considered confidential know-how of Smartkiosk, shall not be disclosed by the Customer to any third party without the prior written authorization of Smartkiosk, and shall not be used by the Customer other than for the purpose of using and servicing the Goods. The Customer shall cause its technical personnel to comply with the covenants contained in this Section 10.
11. Force Majeure
Smartkiosk shall not be liable for any delay or failure to meet any of its obligations pursuant to Customer’s purchase orders to the extent such delay or failure is due to circumstances beyond Smartkiosk reasonable control, including without limitation war, act of terrorism, strike, governmental action or failure to act, epidemics, fire, flood, storm, earthquakes and other acts of God.
12. Applicable law and jurisdiction
The sale of Goods by Smartkiosk to the Customer shall be governed by the Italian law, without giving effect to the conflict of laws principles thereof. Any proceeding or action arising out of or relating to such sale must be brought in the Court of Pisa, Italy.