1) Scope of Application
1.1 These General Terms and Conditions of Sale (“General Terms”) shall apply to any and all supply of products labelled either with the Xenios USA® registered trademark and/or with any other third Party trademark (“Products”) that will be executed to any client (“CLIENT”) by DUKE SPA, either as the international licensee of Xenios USA LLC or as a reseller of any third Party product, with registered office in 47899 Serravalle, Strada Acquasalata n. 4 Republic of San Marino, Company Code Number SM22855, enrolled to the Republic of San Marino Registry of the ecommerce operators at the N° 7542, (“SELLER”), through its website www.xeniosusa.com (“Website”).
1.2 These General Terms shall apply also to any supply of the Products executed to any CLIENT by the SELLER, by invoicing, only for EU VAT purposes, the same thru the European Fiscal Representative of the SELLER – Paolo Gasperoni – Via Flaminia 229/n – 47900 Rimini (RN – ITALY) – VAT: 04083210403
1.3 No provisions deviating from these General Terms will be binding on SELLER unless (i) included in the “Sale Contract” as defined in paragraph 3.1 below or (ii) included in documents following the Sale Contract and whose content has been accepted in writing by SELLER. In any case, even if deviating provisions are agreed upon in writing, these General Terms shall continue to apply to all the sections not expressly disregarded.
1.4 In case CLIENT, during the procedure aimed at executing the Sale Contract or thereafter, communicates to SELLER its VAT number or, in case of sports associations or similar subject, an equivalent tax identification number for invoicing the purchased Products, CLIENT accepts and acknowledges that such communication shall be deemed as declaration of CLIENT that it purchases the Products to use the same exclusively for its own business and/or professional activity, consequently CLIENT shall not be considered a consumer for any legal purposes and for these General Terms.
1.5 In case CLIENT is a consumer, the provisions of these General Terms shall not prejudice the rights of CLIENT provided for by the mandatory rules of the country of residence of CLIENT.
2) Products Features and Specifications
2.1 Any information and image regarding the Products included in the Website is approximate and purely informational. As a consequence, such information and images might not perfectly represent the characteristics, features and/or specifications of the Products and, therefore, the same shall not be binding on SELLER.
2.2 Before executing the Sale Contract, CLIENT has the responsibility to make sure that the Products are suitable for their specific purpose and/or intended use and, in addition, that the Products also comply with the laws and regulations applicable in the place where the CLIENT will import, distribute or use them in any way. Therefore, SELLER shall not be liable for any damage, direct or indirect, occurred to the CLIENT or to any third party which may in any way arise from or in relation to the supply of Products not compliant with the specific purpose and/or intended use or with the above mentioned laws and regulation.
2.3 Used product – This product is an used item. It could be employed in to one or more event or contest endorsed by Xenios USA. By purchasing this product you know and accept that Xenios USA can’t guarantee the same outlook and/or used level for all pieces. All used items are anyhow tested in advance and those who are no longer working are not put on sale. When we found small issues on items’ inspection, they are all refurbished before to put used items on sale. All Event Equipment products can’t be exchanged once received. Any right of return is not guaranteed on them, but the right to claim for product’s defectives. Since Event Equipment items are used and sold as they are, no claims for outlook and/or aesthetic issues shall be accepted.
2.4 Outlet product – This product is about to go phase out or already gone out from the Xenios USA catalogue. All Outlet products are brand new and thus they feature the same warranty terms of all other items on the Xenios USA catalogue. All Outlet products can’t be exchanged once delivered. Any right of return is not guaranteed on them, but the right to claim for product’s defectives. We can’t promise the same product could be found again later, in case you may need more units of the same.
3) Execution of the Sale Contract – CLIENT’s liability for the information provided
3.1 The sale contract (“Sale Contract”) is executed exclusively through the following procedure:
The Sale Contract shall be deemed executed only upon transmission by SELLER of the Shipping Confirmation to CLIENT.
3.2 The supplies will only include what is expressly indicated in the Shipping Confirmation. In this respect, SELLER shall be entitled to not deliver and not charge to CLIENT the Products that are not available at the moment of shipment. In such case, CLIENT shall pay only for the Products specified in the Shipping Confirmation, without any right to terminate the Sale Contract and to claim the reimbursement for any damage or loss suffered.
The provisions above shall not prejudice the right of withdrawal set forth in article 6 below in case CLIENT is a consumer.
Should the SELLER delivers to CLIENT only a part of the purchased Products and shouldn’t the CLIENT accept a partially postponed delivery, SELLER shall refund to CLIENT the price paid, as long as the payment method fees (where applicable) and the shipment fees, thru the same payment method used by CLIENT to pay SELLER.
3.3 CLIENT shall be liable for all the data provided to SELLER necessary for any communication SELLER may send to CLIENT, for invoicing purposes and for delivery of the Products ordered. Therefore, SELLER shall not be deemed liable for any damages, either direct or indirect, suffered by CLIENT or by any third parties in case the data provided by the CLIENT are incomplete and/or incorrect.
4) Packing – Delivery term – Delivery time
4.1 The Products will be packaged and readied to ship in compliance with the standard protection methods generally adopted by SELLER for the Products in question, in accordance with the agreed mode of transport.
4.2 SELLER shall deliver the Products by appointing the anytime most suitable carrier, exclusively in the territory of the European Union and the Republic of San Marino. Unless otherwise provided for in the Sale Contract, Products shall be shipped to CLIENT from the SELLER warehouse, located at Strada Borrana 35 – 47899 Serravalle (Republic of San Marino) and therefore delivered to CLIENT in accordance with the Incoterms® ICC rule, latest version, DAP – address of CLIENT indicated in the Sale Contract.
4.3 SELLER shall use its best endeavour to deliver the Products within the delivery date provided in the Sale Contract, even in partial deliveries, and in any case not later than 30 (thirty) days (“Delivery Term”) from the date of transmission of the Shipping Confirmation. Except in case of wilful wrongdoing or gross negligence, SELLER shall not reimburse possible damages, either direct or indirect, due to a delay in delivery.
4.4 Upon delivery of the Products, shouldn’t the CLIENT be available at the destination address, the Products will be temporary stored at the CLIENT Products’ destination address closest carrier’s warehouse. The appointed carrier shall attempt to deliver the Products to CLIENT up to two more times. Should the CLIENT keep being unavailable, after the third delivery attempt, the Products will be sent back to the SELLER’s warehouse. All incurred cost for any delivery attempts after the first one as well as to have the Products sent back to the SELLER warehouse, will be charged to the CLIENT by the SELLER. Upon actual receipt of the Products, CLIENT must report possible damages occurred to the packaging and/or shortages or anomalies of the Products occurred during the transport, by notifying details of such events on the transportation document, and must also:
Should this not be the case, SELLER shall not be liable for possible damages, losses or theft of the Products occurred during the transport, even if transport risks were, in whole or in part, upon SELLER.
5) Prices – Payment
5.1 The prices of the Products are listed in the Website and they include charges and taxes, where applicable.
5.2 The prices of Products do not include shipping costs, which are indicated and calculated during the procedure for placing the order and before its confirmation.
5.3 The prices of the Products do not include the extra fees that SELLER may charge to CLIENT in case of use of certain payment methods. The same are calculated during the order confirmation, only in those case where they are applicable, and they could not be higher than the cost paid by SELLER to the relevant payment method’s provider for the use of the same.
5.4 In case of computer, manual, technical error or error of any other kind which causes a significant variation to the Product’s prices described in the Website and which makes them unreasonable or clearly derisory, SELLER shall be entitled to terminate the related Sale Contract. In such case, SELLER within 15 (fifteen) days from the day of termination, shall reimburse CLIENT of all the amount paid in relation to the Sale Contract terminated.
5.5 CLIENT shall pay for the Products in accordance with the payment methods provided for in the Website, even if some of them stand for a deferred payment by the order placing (as a mere example: Bank Transfer, Cash on Delivery ecc..). In no event CLIENT shall incur higher costs than those borne by SELLER in relation to the payment method chosen for executing payment.
No payment shall be considered as being made by CLIENT until the relative amount has been credited to the bank account of SELLER.
5.6 SELLER shall ensure that the communications related to the payment and to the data provided by CLIENT when executing the payment, in case CLIENT chose a web-based payment, are managed through dedicated websites and lines provided and managed by the several payment method’s providers.
The safety of the electronic payment methods offered on the Website of SELLER is ensured by: for the provider PayPal Holdings, Inc: SHA256 + TLS 1.2; for the provider Stripe Inc. (USA): AES 256 bit.
5.7 SELLER shall not be deemed as liable for any loss or theft of CLIENT’s payment data, when the payment is executed out of the Website, and thus totally under the control of the provider of the payment method chosen by CLIENT.
6) Right of Withdrawal – RETURNS AND REFUNDS.
6.1 In case CLIENT is a consumer, CLIENT shall be entitled to withdraw from the Sale Contract, without penalty and without providing any reason, within 14 (fourteen) days from the date of receipt of the Products. In case of several purchases made by CLIENT with a sole order and delivered separately, the above term of 14 (fourteen) days starts from the date of receipt of the last Product.
6.2 To exercise the right of withdrawal, CLIENT shall notify SELLER by using the following method:
6.3 SELLER, within 3 (three) days by the receipt of the above CLIENT’s communication, shall transmit to CLIENT by email all necessary documents and instructions to let CLIENT ship back to SELLER the Products he asked to exercise the right of withdrawal for.
6.4 In case of withdrawal, CLIENT shall return the Products within 14 (fourteen) days from the date of the communication to SELLER of its intention to withdraw from the Sale Contract.
6.5 The Products shall be shipped to DUKE SPA – Strada Borrana 35/A Z.I. La Ciarulla – 47899 – Serravalle (San Marino). The Direct costs of returning of Products shall be borne by CLIENT, even if the procedure of returning is managed and executed by SELLER.
6.6 The Products must be returned undamaged, in their original packaging and complete in all of their parts (including packaging and any documentation or accessories: handbooks, cable, etc.) and along with the related tax documentation.
6.7 Without prejudice to the fulfilment of the provision set forth in the above paragraph 6.6, CLIENT will be refunded the amount paid to SELLER for the Products object to the withdrawal, excluding the payment method fees (where applicable and thus paid), including the original delivery costs equal to the standard shipping costs provided by the SELLER, within 14 (fourteen) days from the date of receipt of the communication of withdrawal of the CLIENT.
SELLER, however, shall be entitled to withhold the reimbursement until receipt of the Products or until CLIENT has provided evidence of having sent back the Products to SELLER, whichever occurs first.
6.8 SELLER shall make the reimbursement according to the same payment methods used by CLIENT for the purchase. In the case of payment through bank transfer, or Cash on Delivery, CLIENT shall communicate to SELLER, by email to the address [email], all the bank details to make the reimbursement.
6.9 SELLER has the right to partially reimburse CLIENT, in the case the returned Products, upon receipt and checked by SELLER do not be found in the conditions here above mentioned at the article 6.6.
6.10 SELLER shall communicate by email to CLIENT the net amount to be reimbursed in case SELLER should incur in to extra cost in order to put the returned Products in to the conditions here above mentioned at the article 6.6.
6.11 Should CLIENT ask to exercise his right of withdrawal by partially or totally changing the purchased Products with other Products available within the SELLER’s catalogue, SELLERS shall have to authorize such enquiry and thus CLIENT shall pay to SELLER, on top of all the herein article 6 prescribed costs, the freight cost to have the new Products shipped up to CLIENT’s destination address and/or the difference between the original lower paid price for Products CLIENTS asks the change for and the higher price of the Products asked by Client as replacement Products. Freight cost to have the replacement Products shipped shall be calculated by SELLER by the shipment cost method of calculation used within the SELLER’s Site. Should CLIENT ask for a lower price replacement batch of Products, SELLER shall partially reimburse CLIENT as prescribed within the herein article 6.
7) Legal Warranty
7.1 In case CLIENT is a consumer, CLIENT shall be entitled to the warranty provided by the law (“Legal Warranty”).
7.2 According to the Legal Warranty, SELLER warrants that the Products will conform with the Sale Contract and that it will be liable for any defect of conformity that will be discovered within two (2) years from the date of delivery of the Products.
7.3 In case of receipt of Products not conforming with the Sale Contract, CLIENT shall notify SELLER the non-conformity in writing within two (2) months from the discovery of the same, failing to do so will result in the lapse of the Legal Warranty.
7.4 The Legal Warranty does not cover:
7.5 In the event set forth in paragraph 7.3 above, CLIENT is entitled to have the non-conforming Products repaired or replaced free of charge. For this purpose, CLIENT shall immediately contact SELLER by email at the address [email]SELLER shall organise, at its own expenses, the shipment of a replacement product to CLIENT, or the collection of the non-conforming Products, in accordance with the availability of CLIENT. SELLER, in any case, shall become owner of the non-conforming Products that have been replaced.
7.6 In case the remedies mentioned in paragraph 7.5 above are impossible or excessively onerous, CLIENT is entitled, at its own options, to request a price reduction or to terminate the Sale Contract.
8) Conventional Warranty
8.1 In case CLIENT is a professional, it will be covered by this sole conventional warranty (“Conventional Warranty”).
8.2 According to the Conventional Warranty, SELLER warrants that the Products are free from material or manufacturing defects and they are compliant with the Sale Contract. Without prejudice to the provisions set forth in the datasheet of each Product, which CLIENT can find and download from the Website, the Conventional Warranty period is 12 (twelve) months from the date of delivery of the Products.
8.3 No Conventional Warranty shall apply in case of:
8.4 CLIENT shall inspect the Products as soon as possible and shall notify SELLER of possible defects or non-conformities in writing, by email to the address [email], within and no later than the following terms; failing to do so will result in the lapse of the warranty and the unenforceability of the warranty rights:
In the notification document, CLIENT shall provide a detailed and exhaustive description of the claimed defects or non-conformities along with an adequate photographic documentation.
8.5 SELLER will have the right to examine the Products, or samples of the Products, which CLIENT claims to be defective or non-conforming. In this respect, CLIENT shall be entitled to return to SELLER the Products that CLIENT considers to be non-conforming or defective only upon SELLER’s written authorization and only on the condition that CLIENT bears all costs and risks for the shipment of the Products, unless SELLER expressly authorizes in writing CLIENT to ship such Products at costs and risks of SELLER.
The authorization to return the Products or the samples allegedly defective or non-conforming shall never be interpreted as an acknowledgment of the claimed defects or non-conformities on the part of SELLER.
8.6 In case the Products are ascertained by SELLER as actually defective or non-conforming, the CLIENT will be entitled only to obtain, at the SELLER’s option:
8.7 For the purpose of paragraph 8.6 letter a), the Products repaired at the premises of SELLER as well as the Products replacing defective or non-conforming Products shall be delivered to CLIENT in accordance with the delivery term Ex-Works (EXW) – premises of SELLER, unless SELLER authorizes in writing CLIENT to return the Products at costs and risks of SELLER. At all events, SELLER shall become owner of the Products that have been replaced.
8.8 The rights and remedies described in paragraphs 8.6 above, are the sole warranty rights and remedies granted to CLIENT. To the fullest extent permitted by law, any other liability of SELLER, which may in any way arise from or in relation to the supply of defective or non-conforming Products, including, but not limited to, compensation for direct or indirect or consequential damages, loss of profits, etc., is expressly excluded.
8.9 The present Conventional Warranty is in substitution for, and excludes, any other warranty, express or implied, set forth by the law or otherwise.
9) Right to use the trademarks of the Products
9.1 CLIENT accepts and agrees that no clause within these General Terms may be interpreted as granting to CLIENT any rights of ownership or of use of the trademarks, names, and any other distinctive signs of the Products.
9.2 CLIENT shall not register or have registered by others trademarks, trade names, patent or distinctive signs of Products, or trademarks, trade names, patent or distinctive signs which are similar to, or which can be mistaken for, those of the Products, irrespective of the language in which they are expressed, and in particular with reference to the registered trademark “XENIOS USA®”. In addition, CLIENT shall not use the company name, the trademarks or any other alphanumeric word and any other graphic, photographic and video signs referred or referable to the Products irrespective of the language in which they are expressed, and in particular with reference to the registered trademark “XENIOS USA®” and any other graphic, photographic and video signs that identify in any manner the trademark “XENIOS USA®”, and/or the products under the trademark “XENIOS USA®”, for the purpose of registering a domain name under any extension or for the purpose of performing any activity on social networks and social media such as, for example, Facebook, Twitter, Google+, LinkedIn, Instagram, Weibo, Vk, Snapchat, Skype, YouTube and the like.
9.3 Should CLIENT have registered, registers or make someone else have registered an exclusive right over the trademarks, names or other distinctive signs or domain names related to the Products, in breach of the provisions set forth in paragraph 9.2 above, these registrations will be immediately transferred from CLIENT to SELLER. For this reason, CLIENT shall start and complete, as quick as possible, all the activities needed to make the transfer of those rights to SELLER permanent, without payment or refund of all costs incurred for this purpose.
10) Force Majeure
10.1 SELLER shall not be liable or responsible for failure or delay in performing or fulfilling any obligations undertaken in reference to the supply of Products when such failure or delay is due to the occurrence of an event of force majeure such as wars, fires, earthquakes, floods, tsunami, strikes, labor or employment difficulties, breakdown and disservice of Internet, restriction on the use of power, suspension or difficulties in the transports, breakdown of the plants, acts of public authorities or any other event or cause whatsoever, similar or dissimilar, which cannot reasonably be forecast or provided against and which cannot be overcome by SELLER with reasonable diligence.
11.1 The Website uses “cookies”. Cookies are files that stores information about CLIENT browsing on the Website which register information concerning the navigation of CLIENT on the Website (pages visited, connection time, etc.) and which allow SELLER to provide a customized service to its clients.
11.2 CLIENT is entitled to deactivate cookies through its Internet configuration menu. It is understood that the deactivation will prevent CLIENT from purchasing online.
More information are available at the following link www.xeniosusa.com/en/privacy-policy/.
12.1 CLIENT can acquire information and set its preferences with regard to the processing of personal data by accessing the following link www.xeniosusa.com/en/privacy-policy/.
13.1 The invalidity or unenforceability of any provision, or portion thereof, of this General Terms shall not affect the validity or enforceability of any other provision.
14) Applicable Law – Dispute Resolution
14.1 These General Terms and all the Sale Contracts that the parties will execute on the basis on the same will be governed by the law of Republic of San Marino. In case that CLIENT is a consumer, CLIENT is provided for by the mandatory rules of the country of residence of CLIENT.
14.2 Any dispute arising out of or in connection with these General Terms or in connection with a Sale Contract occurred on the basis on the same shall be subjected to the jurisdiction of the Republic of San Marino Court. In case that CLIENT is a consumer, CLIENT is provided for by the mandatory rules of the country of residence of CLIENT.
14.3 CLIENT is entitled to access the European Online Dispute Resolution Platform to resolve disputes, by accessing the following link http://ec.europa.eu/odr