General Conditions of Sale of software and equipment manufactured and / or marketed by ISAC
- Under these Conditions of Sale, we provide the following definitions:
||Subject that requires an offer or places an order for the purchase of ISAC products.
||Document whereby ISAC defines the features, the prices and the terms of delivery of the products offered to the Customer after his request and in compliance with its requirements.
||Document sent by the Customercontaining the formal request for ISAC products.
||Communication by ISAC whereby its accepts the Customer order. This acceptance gives contractual validity to the order.
||All the goods and services provided by ISAC.
||Hardware and software items produced by ISAC and offered and sold to the Customer.
||All support activities, assistance, installation and maintenance services provided by ISAC to its Customers.
||Any article or material produced or provided by ISAC.
||It consists of machine-readable instructions, audiovisual content and its license material. Includes computer software, all copies and the parties of it, even though connected with other software, the related supports, printed materials, user documentation, the electronic and online manuals. It also includes, except as expressly provided by the subsequent provisions,updates and improvements to the initial version.
||Original Equipment Manufacturer, namely Customer that uses ISAC products to build machines and apparatuses for other manufacturers or for the final consumer.
- Our offers, our products, services and deliveries shall be governed exclusively by these general conditions of sale. These conditions also apply to all future business relationships even without express renovation of their acceptance. ISAC does not accept conditions that contrast or deviate from these general conditions of sale unless their validity has not been accepted writing.
- In placing of an order to ISAC, or in the acceptance of a proposal from ISAC, it is always implicit the acceptance and observance of the general sales conditions set out below, even if they differ from the general and / or special purchase conditions of the Customer.
- While using the products delivered, third-party property rights must be respected.
- OFFERS,ORDERSANDCONCLUSION OF THE CONTRACT
- ISAC offers are valid for thirty (30) days, unless otherwise specified, and supersede any previous versions related to the same goods and / or services.
- All ISAC offers are subject to changes and are not binding. ISAC reserves the right to modify the product at any time without any special notification keeping the relevant characteristics. In the case of calculation or printing errors in the offer, ISAC reserves the right to correct such errors.
- The orders of ISAC Customers produce full contractual effect only from the time of the compliant written acceptance by ISAC. An acceptance not compliantwith the proposal correspond to a new proposal. The contract will be considered concluded only when it has been reached, in writing, the full agreement of the parties on all elements of the negotiation.
- The one who has issued an order remains bound to it by contract in case of ISAC has performed it.
- Our employees are not allowed to define verbal collateral agreements or to engage in activities that have content that goes beyond that defined in the written agreement.
- ISAC reserves and holds unconditionally the ownership and copyright of samples, computations, cost estimates, models, drawings and similar documents, physical or otherwise, including those in electronic format. These documents may be used by the Customer only to verify the offer, they should not be made available to third parties and must be immediately returned to ISAC if the order is not concluded. The foregoing provision shall not apply in cases where the documents mentioned are publicly available.
- Prices, sizes and other characteristics described in catalogs, circulars, advertisements, price lists and on the website are indicative. These data are only binding in so far as expressly referred to in the order accepted in writing by ISAC.
4. TERMS OF DELIVERY
- The delivery time starts from the date of the actual conclusion of the contract in accordance with point 3, provided that there has been a complete clarification of the commercial and technical aspects and the fulfillment of the obligations imposed on the Customer (such as sending documents that the Customer must provide, official certifications or approvals), but not, however, before receiving a possible advance payment that may be agreed.
- If the delivery time is reported as peremptory and essential in the contract, this must be considered with a tolerance in favor of ISAC. Any reasonable delay shall not entitle the Customer to cancel or reduce the order. In any case, such a delay does not authorize the Customer to be refunded for direct or indirect damages.
- Unless otherwise agreed between the parties, the day of delivery is to be intended that in which the goods are shipped or otherwise announced by ISAC as ready for shipment. In the case that the Customer does not perform the withdrawal within the first working day following the notice, it will make all payments related to the delivery, as if the material had been delivered.
- In case the acceptance by the Customer is required, the date of acceptance becomes relevant or, alternatively, the date in which it has been notified that the product is ready for acceptance. In cases where the Customer is in default of acceptance, ISAC may assign in writing a reasonable period of tolerance the unsuccessfully expiration of which authorizes ISAC to terminate the contract and to request to be paid for the services provided and to be reimbursed for the damages suffered. ISAC may, at its discretion, concretely calculate that damage or require a lump sum equal to the 15% of the net value of the invoice and it is in charge to the Customer to provide evidence that ISAC has suffered no damage or that this is significantly lower than the lump sum required.
- Partial deliveries are allowed.
- ISAC is not responsible for delays in delivery and performance due to force majeure or events that make delivery considerably more difficult or temporarily impossible (especially decrees or official measures, strikes, lockouts, traffic disruptions, malfunctions, problems in providing energy, mobilization, riots, shortages of raw materials, etc.) even if these events occur at suppliers and even if the deadlines have been agreed as binding. These events give the right to ISAC to postpone the delivery or the service performance for the duration of the same over a reasonable period after their dissolution, or to terminate, totally or partially, the contract for the part of it not yet fulfilled.
- If the events referred to in item6last more than three (3) months, the Customer has the right to terminate the contract for the part thereof not yet performed after a reasonable period of grace. The Customer undertakes to declare, within a reasonable period of time, if it intends to terminate the contract due to the delay or to wait until the delivery.
- If the delivery time is extended or if ISAC is released from its obligation to fulfill the contract in accordance with points6 and4.7, the Customer may not claim compensation if ISAC informed it immediately of the impediment. This also applies if the circumstances referred to in paragraph4.6occur during an existing delay.
- If ISAC is responsible for the failure to meet the deadlines agreed as binding or is in default, the Customer is entitled to ask a compensation for delayed completion equal to 0.5% of the invoice value for each full week of delay; in no case this compensation may be greater than 5% of the value of the invoice related to the supply of goods and services affected by the delay.
- Claims for damage by the Customer due to delays in deliveries that go beyond the limits set out in section9should be excluded also in case of expiration of a tolerance period given to ISAC to make deliveries. The Customer may only terminate the contract in accordance with legal arrangements, if ISAC is responsible for the delay of delivery. The above provisions do not imply a change of proof to the detriment of the Customer.
- DELIVERY, SHIPMENTAND TRANSFER OF RISK
- The delivery is always considered as performed at the operative headquarters of ISAC, where the Customer will, at his own expense,collect the goods, unless otherwise stated in the order confirmation.
- In the case of shipment, the goods are considered to be delivered to the Customer upon delivery to the courier, irrespective of whether it was contractually agreed the clause “free at destination”.
- The risk is considered as transmitted to the Customer as soon as the delivery is performed according to points 1 and 5.2.
- In case of need for acceptance, it will be decisive for the transfer of risk. The risk is transferred immediately at the date of acceptance or, alternatively, after the notification by ISAC that the product is ready for acceptance. The Customer may not refuse the acceptance in the event of a minimal or insignificant defect.
- If the shipment or the acceptance does not occur or if they occur late because of circumstances not attributable to ISAC, the risk is transmitted to the customer from the day of notification of readiness for delivery or for acceptance.
- The goods travel at risk of the Customer; ISAC is not liable for loss of goods or damages to them deriving from the transportation. The goodstransported, for whatever reason, with ISAC vehicles is not covered by any insurance policy. The insurance coverage of these risks is always the responsibility of the Customer.
- In case of withdrawal of material at ISAC establishment by the Customer or person authorized by it, it/him must verify quantities and weights, as shown on the delivery note or transportation document. After five (5) days from the date of the withdrawal, or the date of receipt, in case of shipment, it is not allowed any complaint.
- Prices applied are those shown in the order confirmation or in the contract.
- The prices agreed in the contract or in the order confirmation, unless otherwise specified, are net of taxes, stamp duty, insurance, shipping, transportation, customs charges and any other charge: any costs for these items will always be in charg to the Customer, or separately charged to the Customer if incurred in or anticipated by ISAC.
- PROVISIONS ON EXPORT
- ISAC reminds the Customer that the exportation of products, information, software and documentation (collectively referred to as products) in accordance with the respective export regulations of the Italian Republic, the European Union and / or the United States of America – for example, due to their nature or purpose or final destination –may be subject to authorization or may be excluded and infringements are prosecuted. The Customer is therefore responsible for ensuring that all relevant national and international laws related to exports are strictly observed and that any necessary authorizations have been obtained. In this regard, the Customer undertakes in particular to monitor and ensure that:
- if the products intended for military purposes or related to armaments, nuclear technology or guns can only be provided with the permission of the respective authorities, in particular national, such authorization is obtained in advance in case of resale;
- the relevant resolutions of the United Nations, EU and Italian laws regulations and lists of competent Italian authorities are respected;
- to any company or person listed in the Denied Persons List (DPL) of the Department of Commerce of the United States havebeen supplied goods, software or technology of US origin;
- to any company or person listed in the Specially Designated Nationals and Blocked Persons List of US Treasury or the Terrorist List of the EU have been supplied products;
- it is observed the Entity List of Department of Commerce of the United States;
- any deliveries are done to people in the Unverified List of the Department of Commerce of the United States.
- In case of violation by the Customer of the obligations listed above, it shall indemnify ISAC on first demand against all appeal and indemnify any damage suppliers, licensees, third party, authorities or state organizations and / or international claim against ISAC.
- Supplies and services (that is the fulfillment of the contract) are made on the condition that any obstacles opposes to the performance due to national or international regulations, in particular the export control regulations and embargoes or other sanctions. The Contracting Parties undertake to provide all information and documents necessary for export / transfer / import. Any delay due to an export authorization or approval procedures suspends any deadlines and delivery. If the necessary permits are not issued, contract is considered not concluded with respect to the parties involved; the damage claims due to non-compliance of the above mentioned term are excluded.
- Payments must be made punctually with value date that shown in the contract or bill of sale.
- ISAC expressly reserves the right to refuse checks and promissory notes. There is no guarantee that ISAC accepts the payment methods above. Acceptance can take place in the face of discount option, and only on account of payment, where the term of promissory notesdoes not exceed three (3) months. The discount and expenses relating to the bill of exchange are charged to the Customer and must be paid immediately and in cash. The risk of timely presentation and protest are charged to the Customer.
- Upon the occurrence of any late payments, ISAC will automatically charge, from the due date to the date of actual payment, the annual interests equal to the reference rate applied by the European Central Bank (ECB) increased by four (4) points, without the need of formal notice by ISAC, subject to the right of this to take legal action to obtain the forced fulfillment, with expenses charged to the Customer. Further requests are not excluded.
- In case of missed payment and justified doubts about the solvency or creditworthiness of the Customer, ISAC has the right – without prejudice to its other rights – to demand collaterals or advance payments for outstanding deliveries and declare whatever performance resulting from business relationship as immediately due.
- Credit claims by ISAC become all immediately due and payable as soon as: the Customer fails to fulfill one or more obligations; promissory notes or checks are protested; the Customer suspends payments or is heavily in debt; it have been opened against its assets procedures for composition with creditors or for insolvency, or an insolvency proceedings has been rejected for lack of assets. In the above cases ISAC reserves the right to cancel the contract.
- The products supplied by ISAC arecompliant with current Italian laws; generally speaking, ISAC manufactured products, are compliant with the European directives on CE marking and ROHS Directive (2011/65 / CE).
- The hardware product warranty, unless otherwise stated in the contract, has a duration of eighteen (18) months and six (6) months for spare parts. These terms shall run from the date of delivery or from that in which the transfer of riskoccurred.
- During the warranty period ISAC has the right, at its discretion, to replace or repair, at its headquarters, those parts recognized faulty as a result of proven bad quality of the material and / or workmanship. In this regard ISAC is obliged to support all the expenses necessary for the supplementary performance; in particular the costs of travel and transport, labor and material unless they become greater because the defective part is located in a place other than that in which the Customer has its registered office. In any case the customer has the right to demand compensation for any downtime or productivity reductions that these of renovation or replacement activities may cause.
- The delivered product must be checked by the customer immediately upon delivery to verify the absence of defects and integrity. Any detected defects shall be notified in writing to ISAC with a detailed description of the defect. If the customer does not perform the inspection in due time, or does not notify the defect, the delivery item shall be deemed accepted unless this was not evident during the inspection. Evident defects must beimmediately reported to ISAC in writing, no later than the working week following the delivery, on pain of loss of warranty claims relating to these defects. Defects discovered later must be reported immediately upon discovery, otherwise the delivered item will be considered accepted notwithstanding these defects.
- Software products developed by ISAC in the fulfillment of specific contracts have a warranty of twelve (12) months from the delivery date or from that in which the transfer of riskoccurred. It is always requested an acceptance from the Customer that testifies the correct functioning of the software provided. Unless otherwise specified in the contract, the software product shall be considered as tacitly accepted sixty (60) days after acceptance.
- All possible expenses related to shipment, installation, removal (operations to be carried out in accordance with ISAC) shall be charged to the Customer. Any costs, charges for professional services or expenses for interventions in the area of installation of ISAC productsrelated to the development and testing of software or hardware changes ISAC made during the warranty period and not feasible at its laboratoriesare also charged to the Customer. The expenses for the intervention of ISAC personnelat the user facilities for functional checks or repairs outside ISAC facilities, besidesthe testing and the start-upof the equipment, are regulated by the specific price list or are expressly agreed between the parties.
- The effects of the warrantyare strictly limited to the right of the Customer to obtain for free, from ISAC or its authorized technicians, the repairs or replacements as may be necessary to eliminate evident anomalies (operations to be carried out in its laboratories inCascina (PI)); modifications for purposes others than those aiming at the resolution of malfunctions, such improvements or adaptations,are therefore excluded.
- The Customer loses the right to the warranty:
- if it has tampered with the equipment supplied;
- if it has allowed technicians others than those authorized by ISAC to perform any kind of interventions on ISAC equipment;
- if it has modified the software without ISAC explicit authorization;
- If it has installed software products that are incompatible or potentially in conflict with ISAC software on the hardware structure produced or indicated by ISAC;
- in the case of tampering or alterations to the software product due to an incorrect or improper use of the software itself;
- in the event of damages caused by the action of computer viruses;
- if the case the malfunctioningderives from an improper installation, an inappropriate use or from damagesoccurred after the delivery;
- if in the programmable parts it has used variables, features or components that are not explicitly declared usable in programming manuals or they have been used them improperly;
- if ithas used the hardware or software in a way different from what stated in the user manuals.
- ISAC does not accept claims for defects in case of insignificant deviations from the agreed quality and in case of slight reduction in the usability of the object delivered.
- The Customer waives the right to claim compensation for damages caused by any equipment malfunctioning and / or by the possible unavailability of the equipment for the time necessary for its repair.
- If the intervention aimed at removing the fault fails, the Customer may cancel the contract, after a reasonable period of time. In case of a minimaldefect the right of the Customerto cancel the contract is excluded, and he will be only entitled to a reduction of the agreed price not exceeding 20%. In any other case, the right of the Customer to obtain price reductions is excluded.
- ISAC accurately tests its own software and to guarantee this ISAC has established and maintains a quality system certified according to UNI EN ISO 9001 regulations. Given the complexity and the number of possible cases and operating states of the software, it may be that some latent errors persist. That being, any contractual and non-contractual liability of ISAC for any direct or indirect damages caused to the Customer or anyone else, from failure or incorrect operation of the softwareis excluded.
- During the warranty period, ISAC commits itself to solve the malfunctioning of its software and hardware as quickly as possible, taking into account the technical and organizational time deemed necessary. ISAC also agrees to address the solution of malfunctions depending on their seriousness and harmfulness; it may be temporarily suggested an action that can bypass or limit the adverse effects; if the malfunctioning is not serious, ISAC reserves to agree with the Customer to postpone the solution of the issue to a new version of the software. ISAC reserves the right to make diagnoses, to install new versions, fixes, and anything else deemed necessary for the solution of the malfunctions, using electronic media and tools for those products that have the “remote assistance” function.
- Without prejudice to the following provisions, ISAC should be liable for damages – regardless of their legal basis – only for intentional or negligent violation of the obligations of its own, their legal representatives or its agents.
- In case of slightly negligent breach of cardinal obligations, the liability of ISAC is limited in its extent to typical expected contractual damages in the normal course of events. Basic obligations are those obligations the fulfillment of which actually enables the proper and due realization of the contract and the observance of which is normally expected by the contractual partner. ISAC is not liable for violations of obligations in case of minor negligence such as delays or inability or slightly negligent violation of protective duties. Claims by the Customer that go beyond these limits are excluded. These provisions apply to all damages caused by violations of contractual duties and defects, including loss of production, loss of profits or other indirect damages.
- The above exclusions and limitations of liability shall not apply in cases of fraudulent concealment of defects.
- PROPERTY RESERVE
- The Customer acquires the property of the products delivered by ISAC only after the full payment of the price. In the event that the legislation of the country of destination of the product provide for special obligations to third parties for any opposability of retention of title in favor of ISAC, the Customer is obliged to inform ISAC, providing it with executive details of such procedural requirements.
- Software products developed by ISAC in the fulfillment of specific contract will be provided in executable form only on computers and operating systems indicated in the contract. The source codes and all other possible intellectual property rights remain unique property of ISAC, unless otherwise indicated. It is therefore forbidden to reproduce or copy any kind of software produced and / or marketed by ISAC, unless otherwise indicated.
- The Customer acquires the right to use ISAC software eventually included in ISAC products. If the software is an integral part of an equipment, the right to use it is related to the use of the equipment in which it is included. In the case of a software product, its use is governed by a license agreement for OEM users. For no reason the Customer is entitled to the ownership of the software, unless explicitly stated.
- The Customer undertakes to not communicate or disclose to third parties any information received from ISAC, which has been confided by ISAC for the duration of the business relationship or that was disclosed by other means, without the prior written permission of ISAC. In this regard, the Customer undertakes to ensure that its employees and third parties who have obtained the right to such information during the course of the contract maintain the same degree of confidentiality.
- The obligation referred to in the previous paragraph does not apply in the case in which the information:
- it is or becomes available to the public without the intervention of the Customer, or
- it is already known to the Customer, or the Customer received it from a third party who has the full right to its transmission, or
- is developed by the Customer without the contribution of ISAC and without the use of other information or knowledge acquired in the fulfillmentof the contractual relationship.
- The Customer may disclose confidential information received by ISAC, if forced to do so in compliance with a lawful order of any authority or required by mandatory provisions of law, provided that it gives immediate and advance written notice to ISAC so to enable it to request the most appropriate legal action to protect its interests. The Customer must make every reasonable effort to ensure that confidential information is kept confidential and that these are marked as “confidential.
- The obligation described in this section persists even after the conclusion of the commercial relationship.
- DATA PROTECTION
- The Contracting Parties shall treat the personal data of the respective counterparty in accordance with Legislative Decree. 196/2003.
- When the Customer purchases ISAC software on a permanent basis it is granted the non-exclusive right, unlimited in time,to use it according to the contract.
- If ISAC provides its products to the Customer for a limited period of time, it is granted a non-exclusiveright, limited time,to use it according to the contract.
- Regarding the remuneration for the use of the software and any maintenance contracts, the parties shall enter into a separate license agreement. The Customer undertakes to ensure that anyone using ISAC software observes this license agreement.
- The Customer may use the software on a single computers at a time. We talk about “use” of the software when it is in the main memory or in a storage means of a computer. The software that is installed on a network server for the sole purpose of distributing itis to be considered as not used.
- Royalties applied by ISAC are based on frequency of use (for example, the number of users), resources (for example, the size of the processor) or a combination of both. If the access to the software is controlled by a licensing handling programcopiesof the software can be created to be storedon all the machines that are under the control of the license handling program, but the use cannot exceed the total number of eligible users or resources.
- The Customer can make backups according to the rules of the technology and create backup copies of the software that are necessary for this purpose. If the manual is on a data carrier it can be printed on paper. The Customer may not alter or remove ISAC copyright notices. The Customer has no right to use, copy, process or transfer the software in a manner different from that described herein, or to convert it into another form of expression or translate it in any other way if such a conversion is not necessarily requested by an express provision of the law. He does not have the right to rent or lease the software or assign sub-licenses unless agreed individually and separately.
- When a right of uselimited in time expires or the cancellation or withdrawal of this right occurs, all software usage rights expire, including any copies and the written documentation on advertising material that the customer received from ISAC. The Customer has to delete all the software stored on its computer systems unless it is required by the law a longer storage period. The other collateral obligations of the Customer under the contract continue to exist beyond a possible cancellation or termination of the contract.
- For each case of violation of obligations covered by this paragraph 14 the Customer shall pay ISAC a penalty equal to 10% of the total value of the contract and in any case a minimum amount of € 5,000.00. The Customer, however, has the right to provide proof that ISAC has not suffered any damage or suffered a considerably minor damage.
- ISAC grants to the OEM Customer the right to include its technical not reserved documentation as part of the manual to be distributed to the end user, provided that:
- the documents are not changed, or incorporated only in part;
- any logos or statements of intellectual property ISAC are maintained;
- it is explicitly stated that the documentation is property of ISAC.
It is granted the right to fully translate the documents into languages that are not supported directly by ISAC as long as the above points are respected.
- INTELLECTUAL PROPERTY RIGHTS
- When ISAC provides contractual services based on the descriptions, plans, drawings, instructions or other documents provided by the Customer or through the use of items receivedfrom the Customer, it must ensure that any third party rights, in particular industrial property rights or copyright (hereinafter: property rights) are, directly or indirectly, violated. ISAC is not obligated to investigate the existence of conflicting rights of third parties. ISAC, however. must inform the Customer of any third party rights of which it becomes aware.
- The Customer, always at first request, shall indemnify ISAC, in the cases referred to in paragraph1,against any claims of third parties, and repair any damage done to ISAC.
- In cases where a third party asserts a claim against ISAC as specified in paragraph1referring to a property right, a right of use or a right of accessory author, ISAC has the right to withdraw from the order for the activities or deliveries not yet performed and to be reimbursed for current expenses incurred without examining the legal situation.
- The documents, objects and similar provided to ISAC that did not lead to an order, will be returned on request against reimbursement of expenses. Otherwise ISAC has the right to destroy them within three (3) months from the offer presentation.
- In the event that a third claims legitimate rights against the Customer due to the infringement of proprietary rights occurred with products made by ISAC, it will be liable to the Customer,within the period determined in accordance with paragraph1,as follows:
- ISAC, at its discretion and at its own expense, may obtain a right of use for products interested by the infringement, change them so that the right to property is not breached, or replace them. If this is not possible for ISAC under appropriate conditions, the Customer shall have the right to terminate or to obtain a reduction of the contract.
- The obligation to ISAC to pay damages shall be governed by paragraphs 9 or 10.
- The Customer must immediately inform ISAC in writing about claims asserted by third parties and ISAC reserves the right to take all defensive measures and settlement negotiations. If the Customer stops using the product, in order to reduce the damage or for other important reasons, it shall be obliged to inform the third party that no acknowledgment of the alleged infringement of property rights can be deduced from the fact that the use has been interrupted.
- Claims of the Customer are excluded to the extent that it is responsible for the violation of property rights.
- In case of violation of property rights, to the claims of the Customer regulated in section5athe provisions of paragraph 9.3 are applied by analogy.
- In all other cases of absence of rights, the provisions of paragraph9shall apply.
- Further claims from the Customer against ISAC others than those ruled in this paragraph 15 related to the lack of rights are excluded.
- TRANSFER OF THE ORDER
- ISAC has the right to transfer the order or parts thereof to third parties without the prior written consent of the Customer. ISAC is responsible for the performance of third parties.
- LANGUAGE OF NEGOTIATION AND CORRESPONDENCE
- The trading languages are Italian or English. All correspondence and other documents must be written in Italian or English.
In the case the parties use another language, the Italian version or the English version shall prevail and, between the two, the Italian one.
- LAW AND COURT OF JURISDICTION
- The contract and business relationship will remain governed by the Italian legislation.
- For any controversy or dispute arising between the parties, will be exclusively competent the Court of Pisa – Italy.
- In case one or more provisions of the above general terms and conditions are deemed or become invalid or void or invalidated, even for supervening law, this does not lead to the invalidity and ineffectiveness of the others. The invalid provisions will be replaced by provisions that are as close as possible in purpose to those become ineffective.