GENERAL SALES CONDITIONS
Acacia s.r.l. («Acacia»)
(update 13th November 2018)
1. Scope of application
1.1 The following general conditions (“General Sales Conditions”), shall rule all the current and future sales contracts business to business (B2B) of alloy wheels WSP Italy between ACACIA (located in Via Del Dopolavoro, 164 – 84045 Altavilla Silentina fraz. Cerrelli – Vat n. 03582250654 –Ph. 0039/0828/342711- Fax +39/0828/342733 – e-mail: firstname.lastname@example.org) and the customers, of any kind their own business be: entrepreneurial, trading, handmade or professional («Customer B2B» or just «Customer»). Sales contracts business to consumer (B2C) between Acacia and final users is excluded.
1.2 Acacia doesn’t dispose of representatives or exclusive resellers. In the contractual relationships with third parties, Acacia’s customers act as independent contractors, without any power to conclude contracts or take on obbligations, both expressed and implied on behalf of Acacia.
1.3 These General Conditions prevail over any other general or condition prepared by the customer.
1.4 Acacia can agree, in writing, particular sale conditions, also nothwistanding and in addition to the current General Conditions, for one or more sale contracts. In such case, the agreed exception will be effective only with reference to the provisions of the General Conditions expressly and specifically waived. For what is not explicitly stated hereby, the business relationship is ruled by the provisions of art. 1321 et seq. of Italian Civil Code.
2 The alloy wheels branded WSP Italy
2.1 The WSP Italy wheels are not OEM rims. They are NOT OEM («not original equipment manufacturing») compatible replacement parts, produced by an independent manufacturer of replacement parts for cars. Acacia srl is not holder of the design nor model that the wheels incorporate. The WSP Italy wheels replicate designs and models of car manufacturers and are identical to OEM wheels in appearance, shape and dimensions.
The WSP Italy wheels can be used solely to substitute, for repair scope, one or more wheels incorporated in the car complex product and to restore the original appearance of the vehicle when placed on the market, in observance of art. 110 Reg. CE n. 6/2002 as well as in conformity with the judgement issued by ECJ on 20th Dec 2017 in the joined cases C-397/16 and C-435/16.
It is thus not allowed any use of WSP Italy wheels for purposes not compliant with the above said scopes.
2.2 WSP Italy alloy wheels are homologated in accordance with Regulation UN/ECE n. 124 and they have to be installed as expected on the homologation of the vehicle. Each wheel has to be installed solely on the vehicle type with the correspondent original wheel as expected by car manufacturers.
2.3 Each WSP Italy alloy wheel is associated to a Part Number that identifies the original wheel as expected by car manufacturers, whose name (Alfa Romeo, Audi, Bmw, Chevrolet, Jeep, Citroen, Dacia, Daihatsu, Daewoo, Fiat, Ford, Honda, Hyundai, Infiniti, Isuzu, Jaguar, Kia, Lancia, Land Rover, Lexus, Mazda, Mercedes, Mini, Mitsubishi, Nissan, Opel, Peugeot, Porsche, Renault, Saab, Skoda, Smart, Seat, Subaru, Ssangyong, Suzuki, Tata, Tesla, Toyota, Volvo, Volkswagen) only indicates the destination of the spare parts to the vehicle on which the wheel has to be installed. The indication of the Part Number grants the association wheel/vehicle – that has implemented matching the homologation number of the vehicle and the technical specifications as expected by the Annex 1, point 6.6.1 of the directive 2007/46/CE – in conformity with Regl. UN/ECE n° 124 and the right fitment of WSP Italy wheel in comparison with OEM wheel, installed on the vehicle when first placed on the market.
2.4 WSP Italy alloy wheels have the following indications placed under the spoke: WSP Italy – spare wheels compatible, not OEM, traceable, as well as the serial number and the UN/ECE homologation number on the offset, next to the back-valve.
2.5 The images of the wheels as published on the website www.wspitaly.com and on actually valid catalogues are entirely approximate because the photos cannot be perfectly representative, so they could eventually differ for the colour; for this purpose, it’s necessary the association to the OEM Part Number. The products cannot be supplied on probation. The Customer is responsible for the choice of the ordered products and for their correspondence and their conformity to the ones installed by car manufacturers.
2.6 Technical properties of the products are provided by the currently valid catalogue of WSP Italy alloy wheels and on the website www.wspitaly.com. Acacia reserves the right to make changes to its products without previous notification, as it is considered as necessary in order to adapt its items to the variations of OEM productions.
3. Conclusion of the sale/supply contracts
3.1. The customer shall purchase the alloy wheels WSP Italy, in the minimum quantity of 1 piece, from the website www.wspitaly.com. For such purpose, the customer will record an account B2B by filling in the form named “Create an account” available on the website and it receives the log-in keys to the reserved area for purchases of alloy wheels, where the prices and the availabilities of the products are indicated and where it’s possible to fill in and forward the electronic order form.
3.2. The customers already registered can send the order by fax or by e-mail.
3.3. By sending an order, the buyer declares to read, know and accept the current General Sales Conditions (hereinafter the “General conditions”), including the unfair terms specifically approved by sending a fax or by email duly signed or through the online proceedings devised by Acacia.
3.4. After sending the order, the Customer receives a summary email informing him about the fact that the order is being verified and processed. Acacia checks the completeness and correctness of the order as well as the availability of the ordered products. Such summary e-mail is not an order confirmation.
3.5. The agreement is concluded when the customer (a) approves specifically the current General Conditions, including the unfair terms as per artt. 2.8, 2.9, 3.7, 4.1, 6.2, 6.6, 6.8, 6.9, 6.10, 7.1, 7.2, 8.1, 8.2, 8.3, 8.5, 8.6, 8.7, 9.1, 9.2, 10.2, 11.2, 12.3, 14.1, 15.1 also by the appropriate online procedure on website and (b) when the final confirmation’s e-mail, sent by Acacia, reaches the e-mail provider of the buyer, indicated in his order.
3.6. The order confirmation reports the summary of the following information: a) an`Order Number`, to be recalled in any further communication for this order ; b) the data put into by the Buyer; c) the technical specs of any product and the relevant price; d) the delivery terms of the purchased products, e) the payment terms; f) the information related to the warranty as per art. 8. The customer is obliged to verify the correctness of the information summarised in the order confirmation and to comunicate, without delay, probable mistakes to Acacia.
3.7. Acacia won’t carry out wrong or incomplete purchase orders or made by buyers without warranty of solvency or in case of unavailability of the ordered products. In such cases, within thirty (30) working days from the receipt of the order, Acacia informs the buyer that it cannot carry out the order indicating the reasons or the date of availability of the products. In case of advanced payment, Acacia will refund the amount already paid.
4.1 The prices are quoted in euros excluding value added tax.
4.2 The prices indicated in catalogues, price lists, advertising material, offers, internet website www.wspitaly.com are subject to amendments due to the variations of cost items such as raw materials, electricity, workforce, etc. The customer is thus required to check the sale price before the shipment. Acacia is available to send previously the updated prices of its own products.
4.3 In any case, the increase in prices will be applied to the orders received or incoming after the date of price change.
4.4 The cost of shipment of the products is made known to the customer pursuant to the art. 3.6 and it’s at charge of the customer.
5. Payment terms
5.1. The customer, at the moment of order confirmation, can choose the following payment terms : (a) credit card (on-line) also prepaid or rechargeable (Visa, Mastercard, Maestro networks ecc.), (b) cash on delivery, (c) any other mean in currency unit, also in Acacia site (please notice = the term “cash on delivery” is valid only for Italy).
5.2. Except in the term “cash on delivery”, the customer is obliged to pay the due price in advance, before the shipment or the delivery.
5.3. In case of payment by credit card, no extra charge will be applied. Acacia will charge the amount only at the acceptance of the order. The financial information (e.g. nr. credit/debit card or its expiry date) are forwarded, through cryptographic protocol, to PayPal or other banks supplying remote electronic payment services, without access by third parties. Such information is used by the seller with the only scope to finalize the purchase procedure or to issue refunds in case of return of products. Acacia reserves the right to use such information in order to report to the police the perpetration of cheats or other crimes on the website www.wspitaly.com.
5.4. The tax documents related to the ordered products are issued by Acacia at the finalization of the payment. In case the buyer doesn’t pay the due price on time, Acacia will apply the bank interests over the due amount – ex art. 2 d.lgs. 231/2002 as subsequently amended and supplemented – starting from the expiry date of payment until it is effected.
6. Shipment and delivery of products
6.1. Unless otherwise agreed in writing, the products are delivered ex-works Acacia.
6.2. In case of delivery to a place indicated by the customer, Acacia is free from responsibilities by delivering the goods to the carrier and/or shipper pursuant to art. 1510 italian civil code. The transportation, tax and insurance costs, as well as the costs for return of goods to Acacia and for the returns to the buyer, such as the risks in case the goods get perished, stolen, lost or damaged, are at charge of the buyer.
6.3. Acacia reserves the choice of the most suitable kind of transportation for the delivery of the goods.
6.4. Acacia provides for the shipment of the ordered products as soon as received the payment, except in case of cash on delivery.
6.5. Without prejudice to the provisions of the previous article 6.4, Acacia delivers the products to the courier and/or forwarder within the delivery terms laid down in the order form. In case of unavailability of the products, the art. 3.7 is applied.
6.6. The delivery terms indicated in art. 3.6 are merely indicative, they do not include the transportation times and are not essential terms pursuant to art. 1457 Italian civil code. The delay in delivery of the products doesn’t grant the buyer with the right to refuse them, to break the contract or to act for damages’ refund due to delay or missing delivery, partial or total.
6.7. Upon receiving the goods, the client must verify that the number of delivered packages corresponds to that indicated in the tax document accompanying them; that the goods correspond to what actually indicated in the tax document; that the packaging is integral, neither damaged nor wet or anyway altered or broken, also in the materials, closing seals (adhesive tape, straps…).
6.8 In case of breakouts, scratches and alterations of the package or missing match of the number of packages, such as of delays in delivery, shortages or other damages in the packages or whatelse can be due to transportation, the buyer must immediately express his reservation to the courier by refusing the goods or putting the writing “withdrawal with reserve” on the relevant tax document with specific indication of the reasons of reservation and informing by e-mail the seller, within 8 days, under penalty of forfeiture.
6.9 In case of missing or defective products for reasons depending on Acacia, it will get rid of any obligation providing for the return and repair/replacement of the goods at its own charge with other goods without defects. The refund of any further damage is left out.
6.10 The acceptance of the goods without reservation and the subscription of the delivery document of the carrier and/or shipper implies forfeiture of the buyer from the right to object shortages of the traded products or packages, damages of the purchased products or of outer conditions of the packages.
7. Force majeur
7.1. In cases of force majeur such as: unforeseen company difficulties for transportation or shipment, fires, floods, unexpected shortage of workforce, of raw materials and of ancillary products, energy shortage, strikes, provisions of the Authorities or obstacles of any kind not depending on Acacia and reducing, delaying, hindering or preventing from the production, the shipment, the delivery of goods, Acacia and the customer cannot be held responsible for default and both of them are authorized to recede from the contract.
7.2. In such cases, Acacia informs timely the customer about the force majeur and its decisions by the e-mail indicated by the client at the moment of the order. The Client will be entitled to get refund, even partially, of the price paid, excluding any further claim of any kind towards Acacia.
I. Acacia grants the quality of the products for a period of 24 (twenty four) months starting from the purchase date of the product, or from the delivery date if it’s following and it’s subject to the recording of the purchased product on the website www.wspitaly.com (section “Product warranty”), by entering the codes certifying the authenticity within the term indicated in art. 6.6.
II. Inside the packaging of products WSP Italy there are the serial codes for activation of the warranty (valid also for traceability of the product), which the customer is obliged to provide for within 15 days (fifteen) from the purchase date. In case the customer sells the products WSP Italy to third parties, he is obliged to deliver the abovementioned serial codes to the buyers, so that they provide for the registration on-line within the term indicated above. In case of missing registration, no warranty is given.
III. The warranty can be exercised only after filing the report of defects of conformity within 2 months from the date of discovery of the defect. The report must be accompanied by the original purchase document or by the original delivery note indicating the identification number, the product description and the purchase date of it. The warranty lapses in case of not timely claim.
8.1. The existence of an original defect must be objectively proven by attaching the relevant fotographic evidence. Whenever, during inspection, defects imputable to original faults of the product covered by warranty are not discovered, Acacia will debit the buyer with the transportation costs and repair.
8.2. In case the claim is grounded, based on inspection of Acacia’s technicians, the provision of art. 6.9 and art. 10 will be applied.
8.3. Apart from the expiry of the terms indicated above, the buyer decays from the warranty’s right in the following cases:
(a) If the serial code of the product is cancelled or amended;
(b) If the proof of purchase results amended or altered;
(c) If the instructions supplied by Acacia for the installation, use and maintenance of the product are not observed;
(d) If the product has been modified without Acacia’s previous approval;
(e) If the product is used other than the use for which it is intended for;
(f) If there is not match between the homologation number of the vehcile on which the product WSP Italy is installed and the homologation number of the wheels pursuant to Reg. UN/ECE n. 124 providing for the installation on a given vehicle by indicating the homologation number of it.
8.4. The buyer must, anyway, release from liabilities Acacia with reference to claims of third parties purchasing Acacia’s products from him. The further or wider warranties, provided for by the independent sellers of the products, can be exercised only towards the above-mentioned people and cannot be opposed to Acacia.
9. Improper use
9.1. Considering the high level of technical aspects and the specific nature of the alloy wheels WSP Italy, the buyer is obliged to respect strictly the prescriptions and recommendations under the aspect of safety and reliability related to installation, assembly, use, maintenance and stock of goods. Acacia declines any responsibility in case of assembly made by the user on his own, of use in abnormal conditions and of improper use of such products.
9.2. The damages and/or the defects due to an improper or incorrect use of the product (for example a bad assembly made without the observance of the technical specs provided for the vehicle to which the wheel is intended for or for missing observance of the fitment requirements of the product to the vehicle as results from the homologation card of the vehicle), accidents, not authorized adjustments, bad maintenance, mistake in manipulation, overweight, cleaning with abrasive detergents and strains over the limitations specified in the basic manual, recognized as causes of force majeur, are left out and are beyond the warranty’s object of the above art.8.
10.1. If the defectiveness of the product is ascertained, Acacia accepts expressly the claim and authorizes the return of the product to the following address: Acacia Srl, Via del Dopolavoro n. 164 –– Fraz. Cerrelli aly Srl – 84045 Altavilla Silentina (Sa) – P.I.03582250654
10.2. The defective products must be returned in integral, complete in any part (including the packaging) in perfect conditions, completely new, not used as same as delivered to the customer, without any mark due to use, mounting, dismantling on the vehicle or tailspin of bolts (integral holes of fixing), along with regular bill bearing the indications of the relevant sale document; in absence, any shortage or damage will be debited to the Buyer. All the products have to be photographed and controlled before the packaging and at the moment of delivery to the courier.
11. Intellectual Property’s rights: Designs and marks
11.1. Pursuant to art. 3.2, Acacia is not holder of the design or model that the alloy wheels WSP Italy incorporate. Such wheels replicate designs or models of the car manufacturers and they are identical to the original wheel by aspect, shape and size.
11.2. Acacia reserves the right to terminate unilaterally the current contracts pursuant to art. 1456 civil code, interrupt any business relationship and not to sell its own products to the customers in respect of which there is reason to believe that they buy the alloy wheels branded WSP Italy to make a not allowed use. In such case, the buyer is obliged to release from liabilities and indemnify Acacia against any claim of third people based on the breach of the so-called repair clause pursuant to the previous art. 3.2.
11.3. Acacia reserves anyway the right to make on sample checks by the customers, about the compliance with the obligations to :
(a) inform the final users, by a clear and visible indication put on the product, on its packaging, in the catalogues and also in the sale documents(i) about the fact that the alloy wheels WSP Italy incorporate a design or model whose they are not holders, and (ii) about the fact that such wheels are intended to be used in order to allow the repair of the complex product vehicle and to restore the original appearance of the vehicle ;
(b) allocate the concerned wheels to an use that is compatible with the above scopes.
11.4. The customers are obliged to allow, upon request of Acacia, to perform the reviews as per the previous art. 11.4 by authorized people from Acacia itself, that draws anyway a conformity or non-conformity report, as applicable, of the check carried out.
12.1. Acacia is holder of the rights on the mark WSP Italy. The use of such mark by third parties is not allowed, notwithstanding the chance of an expressed written authorization from Acacia, granted for specific and limited to commercial scopes. In order to require such authorization, it’s necessary to fill out an application form and send it to Acacia, that shall reply within 10 (ten) working days. The silence is not equivalent anyway to consent.
12.2. By this authorization, Acacia grants the applicant with a non-transferable, non-exclusive and free of charge right to use the mark WSP Italy for the only scope here specified.
12.3. The rights arising from the authorization fail in case of improper or anyway not allowed use of the mark itself. In any case, Acacia reserves the exclusive right to drawback or amend, at its own will, the authorization and to start legal actions against any not authorized use breaching the IP rights and that does not comply with the provisions of the current law and with these General Conditions.
12.4. Any use of the mark WSP Italy must get along with a declaration indicating clearly that it comes to distinctive mark of Acacia. In the advertising materials, the information related to the mark’s rights shall be specified at the foot of a page or by an asterisk near the mark, (e.g.*WSP Italy is a mark of Acacia Srl.).
14. Applicable law and competent Court
14.1. These General Conditions such as the single contracts stipulated on their basis are ruled by the Italian law. Any dispute, related anyway to these General Conditions and/or to the contracts stipulated on their basis, is devolved to the exclusive competence of the Court of Salerno.
15. Amendment and Update
15.1. These General Sale Condistions shall be valid and effective until they won’t be amended and/or integrated by Acacia. Probable amendments and/or additions to the General Sale Conditions will be effective from the date of publication on the web-site www.wspitaly.com and they will be applied to the sales effected from such date. To the purchase orders sent to Acacia before the publication of the amendments abovementioned, the General Conditions current at the moment of the forwarding of the orders will be applied.
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Pursuant to art. 1341 civil code, all the above-mentioned articles are accepted and specifically the following provisions are expressly approved:
(i) art. 2 The alloy wheels WSP Italy: art. 2.8 (Liability of the customer in the products’ choice); art. 2.9 (Amendments to the products without obligation of advanced notice); (ii) art. 3 Conclusion of the sale contracts: art. 3.7 (Management mode of the orders not performed); (iii) art. 4 Prices: art. 4.1 (Burden of the customer to make sure of the sale price); (iv) art. 6 Shipment and delivery of the products: art. 6.2 (Release after delivery of the products to the carrier and/or forwarder. Costs and risks at charge of the customer); art. 6.6 (Indicative nature of the delievry terms of the products and exclusion of liability of Acacia for delays in delivery); art. 6.8 (Burden of the customer to make reservation to the carrier and/or forwarder and forfeiture from the reservation in case of communication to Acacia over 8 days); art. 6.9 (Limitation of liability in case of delivery of missing or defective products); art. 6.10 (Forfeiture of the customer from the right to contest shortfalls and/or damages in case of missing reservation to the courier and/or forwarder); (v) art. 7 Force majeur : art. 7.1 and art. 7.2 (Limitation of liability and right of withdrawal from the sale contract in case of force majeur); (vi) art. 8 Warranty: art. 8.1 (Period of two-year of the warranty and subjugation of it to the online activation); art. 8.2 (Lack of warranty in case of missing online activation); art. 8.3 (Forfeiture of the warranty in case of report over the term of 2 months from the discovery of the defect); art. 8.5 (Limitation of liability in case of defective products); art. 8.6 (Other cases of forfeiture of warranty); 8.7 (Obligation of indemnity on behalf of Acacia compared to claims of third purchasers and unenforceability to Acacia of further warranties); (vii) art. 9 Improper use: art. 9.1 (Legal disclaimer of Acacia in case of improper use of the products); art. 9.2 (Case of exclusion of the warranty); (viii) art. 10 Returns: art. 10.2 (Arrangements for the carrying out of returns); (ix) art. 11 Designs or models: art. 11.2 (Expressed termination clause and interruption of business relations. Obligation of indemnity of the customer on behalf of Acacia for claims of third people based on the breach of the so-called repair clause); (x) art. 12 Mark: art. 12.3 (Right of Acacia to drawback at its own will the authorization to the use of the mark); (xi) art. 14 Applicable law and competent Court: art. 14.1 (Application of Italian law and Exclusive Court of Salerno); (xii) art. 15 Amendments and Update : art. 15.1 (Amendments to the General Conditions and their effectiveness).