In these General Conditions of Sale (hereinafter GCS), the following terms shall have the interpretations given below:
- “Seller”: means any company belonging to the Velatia contained in the offer or any other document that is of application for these GCS.
- “Buyer”: mean any natural person or legal entity with whom or who the Seller contracts or sells “the Products";
- “Product(s)”: means products, or part thereof, the subject matter of the contract, as described in these GCS terms and conditions and, in the event, of the purchase order confirmation made by the Seller.
- “Delivery”: means an improvement of the supply and availability of the products in Ex-Works Seller (Incoterms 2000) conditions.
- Unless otherwise specified, all sales of the Products made by the Seller are subject to these GCS. Other conditions or agreements specified not expressly incorporated herein shall have no value or legal effect unless they have been expressly accepted in writing by the Seller
- The subscription of any order, agreement, contract etc. shall entail the waiver by the Buyer of its own general conditions of sale and/or any other stipulation and acceptance of these GCS.
- All orders must be made in writing and shall be subject to the Seller’s express consent.
- It shall be regarded that the Buyer has been notified of these GCS from the moment that it receives a quotation from the Seller, together with these GCS. Alternatively, they shall be regards as having been notified, if the Buyer has received them beforehand in the course of their commercial relationship with the Seller, those being regarded in relation thereto case as accepted by the Buyer for the purposes of processing its order.
- In the event that the competent Courts declare any provision of these GCS null and void, the provision shall be severed from these GCS thereby without affecting the validity of the remaining provisions which shall continue in full force and effect In this case, the parties shall negotiate and attempt to reach an agreement concerning the text of an alternative paragraph to replace the repealed provision and whose purpose and content is as similar as possible to the latter.
3.- DELIVERY DEADLINE
- Any period quoted by the Seller for delivery the Products shall be deemed an estimate only and non-binding as the Seller shall make every reasonable endeavour to meet such delivery date, however, it shall not be liable for the consequences of any delay.
- Unless it is attributable to the Seller due to gross negligence or wilful misconduct, the expiration of the delivery deadline does not entitle the Buyer to claim damages or any compensation, to refuse the supply of the Products, or to suspend the compliance of any obligation, especially that of payment, or in fact, instigate its cancellation.
- The delivery deadline shall commence to run from the approval date of the transaction by the Seller and the Buyer’s compliance of all its obligations. The delivery deadlines shall be understood as extended, provided that they meet with causes that paralyse or hinder the works, and/or circumstances attributable to the Buyer and/or Third Parties, including but not limited to, delay in the date of payment or breach of other obligations, in which case the delivery deadline shall be understood to be extended by the same time that the causes that provoke the delay last.
4.- TRANSFER OF PROPERTY AND RISKS
- Unless otherwise specified in the contract, the delivery conditions shall be EX-WORKS Seller’s premises (Incoterms 2000).
- The Seller shall notify the Buyer of the consignment of the products within the delivery deadline. The Buyer shall notify within the ten (10) days following the notification, both the name of the carrier as well as the consignment conditions. If the Buyer fails to comply with the agreement provisions, the risk shall pass to the latter from the date of the material being ready for consignment, and (I) the Seller shall be authorised to store the products at the expense and risk of the Buyer charging the Buyer storage costs at a minimum of 0.5% of the invoice amount for each week or fraction thereof, (II) the price of the products shall be considered immediately due and payable. After a period of one (1) month having lapsed after the date in which the price became due, the Seller may transfer in a reasonable manner the products without having to communicate same to the Buyer in order to recover the costs and losses that may have been incurred, without prejudice to the obligation of payment that the Buyer has incurred.
- The Seller expressly retains property in and title to Products and shall continue to do so until payment therefore has been received by the Seller in full. If the Buyer has instigated a bankruptcy proceeding, (temporary receivership, bankruptcy or similar) he shall refrain from including the cited Products in his assets, and shall immediately notify the Seller of such circumstances.
- The Buyer is under the obligation to proclaim the existence of the retention of title where appropriate in any circumstances. The Buyer shall be obliged to retain in its possession the Products with due care and diligence and shall insure the goods against any possible risk.
- On that basis, the Buyer shall refrain from carrying out any act of disposal, assignment or lien, of any title, in respect of the goods even if they are pending payment any sum of the supply amount. In the event that the Buyer proceeds with the sale of the Products, the Seller may demand the payment again from the new Buyer, even if it had been incorporated into other products.
- All prices are net prices, excluding any type of tax, VAT, duty or levy, which will be subsequently passed on in the invoice with the corresponding rates. Unless otherwise specified in writing between the Buyer and the Seller, the supply prices do not include packing costs, transportation, including loading and unloading, insurance, customs which will be borne by and at the risk of the Buyer and such additional expense shall be added to the sales price accordingly.
- As a general rule, in the event that there are quotations prior to an order, the prices are valid for one (1) week, and during this period they shall be regarded as fixed payment terms and conditions as specified in this quotation.
- If the costs or materials used by the Seller for the manufacture of the Products were modified after the date of the Seller’s quotation to the Buyer, the Seller may pass on to the Buyer such increases with prior notification of same. In this case, the Buyer, within the seven (7) days following receipt of said notification, may cancel the purchase order, without any liability whatsoever of any of the parties against the counterpart. In the event that the Buyer does not refuse the increase in the price in the abovementioned period, that is, seven (7) days, for all purposes the new price shall be regarded as accepted between the parties.
6.- TERMS AND CONDITIONS OF PAYMENT
- Unless otherwise specified in writing, payment of all placed orders shall be made up-front or by means of an irrevocable and confirmed letter of credit at the discretion and satisfaction of the Seller.
- All invoices issued by the Seller shall be regarded as approved and accepted unless the Buyer shows its dissatisfaction in writing to the Seller, within seven (7) days following receipt of same.
- In the case of partial deliveries, the Seller shall be authorised to invoice and require payment for each partial payment, as well as to issue partial invoices and the Buyer shall be obliged to pay said invoices in accordance with these GCS.
- The payment date shall be the day on which the Seller in fact receives payment.
- If the amount outstanding has not been paid on the established payment date, the Buyer shall be entitled to charge the Seller the corresponding monthly interest pursuant to the provisions of Directive 2000/35/EC of the European Parliament and of the Council of 29 June, 2000, wherein measures are laid down to combat late payments in commercial transactions, from the due date set for payment until it has been received in its entirety, without prejudice to any other rights of the Seller, including the right to recover any legal and/or extrajudicial costs incurred to recover the amounts due.
- The period in respect of payment shall be an essential term of the agreement, accordingly should the Buyer fail to comply with its payment obligations, such as failure to make payment on the due date or in its entirety, the Seller shall be entitled to suspend any commitment or obligation in respect of the Agreement until the Buyer honours its obligations, or even to set aside the Agreement, without prejudice to the Seller’s right of recovery for damages occasioned by the late performance or even the non-execution of the Agreement.
- If the Buyer commits a breach of any of its obligations or there is a reasonable doubt at to whether these obligations will be performed, the Seller shall be authorised to proceed to set aside and rescind the agreements. It shall also be authorised to recover its ownership of the Products, but this provision shall not prevent the Seller from taking action to enforce its any other rights hereunder, in particular the right to recover all damages occasioned, including all legal and/or extrajudicial costs and the payment of all other amounts outstanding or those pending that shall be considered as due and payable in relation thereto.
- The Buyer does not have the right to rescind the Agreement it may only do so until payment to the Seller is made of all the sums outstanding in full up to that moment even those not yet due for payment, as well as any other damages that the Seller may sustain.
8.- MEASURES AND DIMENSIONES
- Any measure or dimension set by the Seller shall be regarded as an approximation, unless the Buyer requires in writing certain specific measures. The amounts mentioned are only estimates, the Products delivered may vary in quantity and a +/- of 2% with the ensuing change in price.
9.- APPARENT DEFECTS
- The Seller shall notify the Buyer within 72 hours after delivery following discovery of the apparent defects.
- Apparent defects or flaws are understood to mean those relating to the shortage in the number of parts of the Products or defects in the quality or state of the Product which can be appreciated through a visual inspection or a minimum control upon receipt of the Products by the Buyer.
- Should no claim with respect to defects be made within the abovementioned period it shall be deemed that the goods have been received in a perfect condition and state and to the satisfaction of the Buyer.
- The Products are warranted to be free of defects for a period of 12 months from the notification that the supply is available for carriage or 12 months from delivery to the first carrier to the end Buyer, whichever takes place first, and provided that the claim has been notified in writing by the Seller within 48 hours after having been detected or when it should have been detected, and always within the abovementioned periods. Likewise, the Buyer must show that the flaws or defects have arisen solely as a direct result of the Seller’s errors or lack of due diligence.
- The warranty consists only in the repair or replacement (at the option of the Seller) in a reasonable period, of the Products that have been recognised as defective, by reason of material or manufacturing defects. The repairs are understood to be made in the factory of the Seller, the dismantling, packaging, charges, transportation, customs, levies etc., shall be borne by the Buyer originating from the shipment of the defective material to the factory of the Seller. The Buyer undertakes to accept the replaced or repaired Products, and under no circumstance shall the Seller be liable to the Buyer for any type of loss or damage as a result of the initial supply or the delay in the deliveries of the replaced or repaired Products.
- The Seller shall in no circumstance be liable to Buyer or any third parties for direct losses or damages, indirect or consequential stemming or connected to the subject matter of this contract, including accidents to persons, damages to property other than the subject matter of the contract or loss of profits. Any commitments and obligations of the Buyer arising from the existing warranties between the Buyer and his customers that outnumber those indicated beforehand and have not been accepted by the Seller in a expressly written manner, shall be solely borne by the Buyer.
- The repair or replacement of a defective component shall not change the commencement date of the warranty period of the Products supplied. The Products repaired or replaced shall have a warranty from their repair or replacement similar to the period that is deducted from the defective or replaced product to comply with the periods stipulated in these GCS.
- As an exception to the warranty described above, when the delivered Products have not been manufactured by the Seller, the Seller shall grant the same warranties to the Buyer that the Seller would have granted to the corresponding manufacturer, however, the Seller does not confer any licence or right of use that would infringe any law or intellectual property or industrial patent of third parties.
This warranty does not cover any liability for damages, defects etc as a result of:
- Repair and replacement of parts resulting from normal wear and tear.
- Repairs, modifications or alterations in the Products made by any person other than the Seller’s organisation.
- An improper use, replacement, repair, modification, maintenance or alteration, or lack of maintenance in accordance with the Seller’s maintenance instructions.
- The lack of lubrication, use or cleaning with the recommended products and regularity indicated by the Seller.
- The Seller shall provide the Buyer, with all necessary information and documents, including the operating manual, to perform its tasks.
- The erroneous and negligent handling, abusive use, defective assembling, variation in the quality of the power supply (tension, frequency...) modifications inserted without the Seller’s consent, installations made or modified at a later date without following the technical instructions of the product and in general, any cause that is not attributable to the Seller.
- The Seller shall not be liable for any loss or damage whatsoever including those caused by the personnel and/or property of Third Parties, including the Buyer, its personnel or third parties.
- The Seller shall in no circumstance be liable for the indirect or consequential damages arising from the supply, by way of illustration but limited to, the loss of production, loss of profits, production halt costs, breakdowns in the Products or in other parts or equipment other than that of the Products, of the Buyer or other third parties, work-related accidents or harm sustained by third persons, accidents and incidents concerning the Environment etc.
- The total liability of the Seller arising from the provision of any concept of any kind is limited to the value of the supply that gave rise to the claim.
12.- CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
- The intellectual and/or industrial property of the Seller’s trademark, the offer, the information attached to same, the Products, and/or the supplies, as well as the items, plans, “software” etc., incorporated or related to same, belong to the Seller: Thus the Buyer shall have no rights to use same for purposes other than the completion of the order, including the total or partial copy or assignment of use in favour of third parties, without the prior express consent of the Seller.
- All intellectual or industrial property rights arising and/or relating to data and/or documents provided or prepared by the Seller, shall continue in the possession of the latter, unless otherwise agreed to the contrary, not granting the Buyer any right or licence with respect to the transmitted information or material.
- The Buyer shall not without the Seller’s prior written consent allow any trademarks or commercial names to be applied to the Products to be modified, altered, obscured or omitted.
13.- DRAWINGS AND DESIGNS OF THE BUYER
- Only in circumstances where the Buyer specifies in writing that the Products contain a design, data or a specific manufacture method, shall the Seller implement these specifications on the provision that said specifications have been accepted in writing. In other cases, the Seller may modify the Products, provided always that these modifications are not substantial or that such substantial modifications have been agreed to with the Buyer, in which case these modifications do not constitute a breach of contract or give rise to any liability whatsoever for the Seller.
- The Seller shall not be liable for any breach in the performance or defective execution of the Products if it is a result of errors, incompetence or other inaccuracies in the data and/or information, in its broadest sense, supplied by, or on behalf of the Buyer.
- The Seller’s inspection of such data / information shall not limit, in any way the Buyer’s liability, unless the Seller specifically accepts in writing said liability.
- The Buyer shall compensate the Seller for all costs, damages of any class that are generated as a result of the manufacture of the Product in accordance with the technical features and information provided by the Buyer, or resulting from the infringement of the patent, industrial and intellectual property trademarks or models.
14.- TECHNICAL INFORMATION
- The scope of the supply and the features of the Products shall be defined in the order confirmation.
- The weights, dimensions, capacities, technical specifications, characteristics and settings relating to the Products of the Seller included in catalogues, brochures, prospectuses and technical literature, are guidance only and are non binding, except when they have been expressly accepted by the Seller.
15.- AUTHORISED USES
- The Buyer shall have be solely responsible and keep the Seller indemnified against all liabilities incurred by the Seller in relation to the use of the Products other than in strict accordance with the Seller’s instructions or for the purpose with which the Products were supplied.
The Buyer stands guarantee to the Seller:
- that it will comply with the legal requirements or requisitions , or approvals by any governmental department relating to the Products and the applications that the Products will be subjected to,
- that while the Products are in its possession or under its control, the Buyer shall comply with such requirements,
- that shall ensure that any other Buyer of the Products shall also comply with these requirements,
- that the Buyer shall indemnify the Seller for any liability arising from or as a result of the breach of such requirements.
16.- ASSIGNMENT OR SUBROGATION
- The Seller shall be authorised to subcontract to third parties the total or partial performance of the Products. All or part of its rights and obligations may also be assigned including even the appointment of any third party as a substitute in compliance of the Seller’s obligations.
- The Buyer shall not assign the agreement or its rights or obligations arising therefrom to any third parties without the Seller’s written consent.
- If the Buyer become subject to any form bankruptcy, in temporary receivership, insolvency proceedings, administration receivership or similar; winding-up, liquidation or transfer, of all or part of its assets, the Seller may instigate the setting aside and rescission of the agreements by means of a written notification, without prejudice to its other rights hereunder such as the recovery the resulting damages and the Buyer shall the Seller all the amounts owed or those outstanding that shall be considered as due and payable in relation thereto.
18.- EXPORT LIMITS
- In the event that any of the Products supplied by the Seller were subject to export control regulations, the Buyer shall refrain from exporting said Products either directly or indirectly, without the Seller’s prior written authorisation.
- In this regard the Buyer pledges and undertakes to notify the Seller of any sale that may be made with its Products to a company located in the USA and/or Canada, or that could reasonably be deemed that the Customer could introduce the Product into those markets.
19.- FORCE MAJEURE
- The Seller shall not be liable in respect of defective or non performance of any agreement due to force majeure in its broadest sense.
- Force Majeure shall be understood as any circumstance beyond the Seller’s control that hinders, temporarily or permanently, the execution of any or all of the Seller’s obligations to the Buyer, regardless of whether these circumstances were or were not foreseen at the time of the completion of the order, agreement, contract etc., including but not limited to: governmental actions, dismissal, revocation or cancellation of licences, business closures, forced closure of all or part of the company, war, whether declared or not, fire, transportation problems, accidents, labour riots, shortage of labour, embargoes, temporary or permanent non delivery of samples, non rendering of services by third parties without regard as to their cause, defects and/or breakdowns in material, machinery, systems and/or software and hardware, absence or lack of material with which to manufacture the Products.
- If the Seller is prevented from delivering the products as a result of an alleged case of force majeure, he may at his free will, either extend the period for delivery during the force majeure period or to rescind the Agreement, as well as demand payment for the partial delivery made, without being obliged to pay any damages or compensation to the Buyer.
- Any notification related to this contract shall be in writing either in Spanish or English and shall take effect 24 hours after its posting by certified mail to the registered office of the parties.
21.- LEGISLATION AND JURISDICTION
- All agreements shall be covered by these GCS. The parties hereby submit to the exclusive jurisdiction of the Courts and Tribunals of the Buyer for the determination of any dispute or question arising between the parties, but this provision shall not prevent the Seller from taking action to enforce its rights hereunder in any other competent jurisdiction.
- The applicable legislation shall be that corresponding to the Courts which may hear disputes between the parties.