1. SCOPE OF APPLICATION
These general sales conditions will be applicable to any sales contract or delivery between the parties, unless they have made a different agreement in writing. The offers and estimates made by the Seller will not be legally binding for him, the sales contract being understood to be formalized only when the Seller confirms an order in writing. These sales conditions can only be modified by written agreement between the two parties, thus, the clauses, or conditions which are written, whether printed or by hand, on the orders, letters or other documents issued by the Purchaser, of this type, will be null and void. Modification by the seller of these sales conditions will not affect contracts which are already formalized. All future purchases of goods from the Seller, in absence of an express agreement to the contrary, will be subject to these general terms and conditions.
Unless the Seller accepts another in the confirmation of the order, in the confirmation of the order, the place for complying with all the contractual obligations will be Zaragoza (Spain), and the delivery of the goods will be at the warehouse of the Seller.
3. DELIVERY PERIOD
The delivery period will begin as soon as the order is confirmed by the Seller, the necessary technical documents of the Purchaser have been received in their totality by the Seller, the payments and guarantees agreed upon are given and the official permits required are granted. The delivery period will be considered to be completed when the delivery is ready to be shipped at the place agreed upon. The delivery period will be reasonably extended if reasons beyond the control of the Seller hinder compliance with the delivery date. Likewise, the delivery period will be extended if the Purchaser changes the original order or is late in its contractual obligations, especially if the Purchaser has delayed in the presentation of the necessary documents or has delayed in the payments agreed upon.
All price must be considered as net, , ex-work, in euros, with no deduction of any type, unless there is an agreement to the contrary. The prices may be modified, the Purchaser having the authority to renounce the contract if it is not in its interest, in a period of 7 days following the notification of the new prices. The prices do not include taxes, fees, or other charges, whether of a general or a special nature, which will be at the expense of the Purchaser, unless anything else is agreed upon in writing, taking into account the Incoterms which are applicable as the case may be, and/or the conditions from the delivery of the goods.
5. FORM OF PAYMENT
Barring written agreement to the contrary, each order will be paid in cash, with no discount, and no allowance of deduction, compensation or retention of payments on the part of the Purchaser. The payment dates agreed upon must be must be met by the Purchaser, even if the transport or the delivery is delayed due to reasons beyond the control of the Seller. If the Seller considers it to be appropriate because of the financial position of the Purchaser, it may request the guarantees it considers necessary to ensure the due performance of the Purchaser of its contractual obligations; during this time it may suspend deliveries. In case of requiring a guarantee endorsement, the text of same must adapt to the model provided for this purpose by the Seller.
Effective from the date of payment agreed upon, the customer must pay interest on the value of the amount owed in accordance with that stated in article 7.2 of Law 3/2004, of December 29, on measures to fight against non-payment in commercial operations. If the customer is late in a payment or the payment of a guarantee agreed on for more than 2 weeks, it will immediately owe the complete balance of payments existing at that time.
7. ACCEPTANCE OF GOODS
The Purchaser will revise and carry out the inspection of the shipments, with regard to quality and quantity, at the moment of delivery. Once revised and inspected, the shipments will be considered accepted by the Purchaser, the same renouncing any presentation of claims. Likewise, the Purchaser will have a period of 30 days to report all faults or hidden defects which appear in the shipments, after which time, the Purchaser will lose all actions and right to present claims for this reason against the Seller. With respect to claims relating to use, sale or distribution of the products sold or delivered, individually or in combination with other products, ingredients, or packing, or any other complaint relating to the contract, the Purchaser’s rights and the responsibility of the Seller will be limited to the replacement of said products or the refund of the sales price, depending on the decision of the Seller. The Purchaser will never have the right to return products accepted or whose time period for reporting defects has passed. The responsibility of the Seller will never exceed the value of the goods affected at the moment of the sale.
8. RESERVATION OF PROPERTY RIGHTS
The Seller will continue to be the owner of all goods supplied until the complete reception of the payments agreed upon. The Purchaser authorizes the Seller to record its reservation of property in public registry or files, and will be under obligation to provide any signature required for it.
The Purchaser will acquire the ownership of the packing materials unless: a) On the packing material it is indicated that the Seller or a third party claims the reservation of property rights of same; or b) The order sheet or the documents which accompany it include a reservation of property rights in favour of the Seller or a third party. In such cases, all stated in the previous Condition: “Reservation of property rights” will be applicable.
The Seller guarantees exclusively that on the delivery date, the products will be in conformity with the specifications agreed upon. The products are sold without posterior guarantees and with no type of promise on the part of the Seller with respect to their possibilities of processing, potential applications and commerciability. The Seller will be responsible for repairing or replacing any goods which, prior to the expiry of the guarantee period, are proved to be unusable due to poor materials, defective design or poor manufacturing. If a supply unit continues to be defective in spite of its repair or substitution, the Seller is authorized to take the defective merchandise on reimbursing the payments received. Excluded from the guarantee and from responsibility of the Seller are all the deficiencies beyond its control, especially if it is as a result of normal wear, false information by the Purchaser, inadequate maintenance, failures in the following of operating instructions, use of any inappropriate material, influence of a chemical or electrolytic action, etc. If the Purchaser affirms that a guarantee in accordance with the technical specifications of the goods is not reached, the guarantee will only be valid if the Seller has the opportunity to make sure that the guaranteed parameters are not reached. The guarantee by the Seller is subject to the appropriate meeting of the payment conditions agreed upon with the Purchaser.
Guarantee and responsibility claims by the customer are exhaustively covered by these conditions. As long as there are no specific obligatory laws to the contrary, under no circumstances will the Purchaser be authorized for contractual or extracontractual claims for damages caused, but not limited to, loss of production, loss of use, of orders, of profit and any other direct, indirect or consequential damage. The Seller is only responsible for compensating the customer for the costs of correcting the defects in the supply unit itself.
12. LIMITED LIABILITY
The prices of the Seller are made and negotiated on the basis that its maximum legal responsibility will be limited. Customers have their own means of risk limitation, and to duplicate them would be superfluous. The Seller is prepared to negotiate higher limits of responsibility, subject to the corresponding proportional increase in price. Barring an agreement to the contrary, the responsibility of the Seller will never exceed the value of the goods affected at the time of sale. The Seller is liberated from all responsibility beyond that maximum, even if it has been caused by its own negligence or non-performance of obligations, except in the case of fraud on the part of the Seller.
The sale of goods by the seller will in no case transfer any licence under patent relating to the products or their composition, and the Purchaser assumes expressly all the risks of infraction of patent by reasons of its us or sale of production, individually or in combination with other materials or in a manufacturing operation in a process.
The profit and risk of the supplies will pass to the Purchaser once they are ready for shipping on the agreed conditions. In case the shipment of the goods is delayed for reasons beyond the control of the Seller, the supplies will be stored and insured at the cost and risk of the Purchaser. The transport will be executed at the expense and risk of the Purchaser. The Purchaser will be responsible for acquire insurance for the supplies against any type of risk. The Seller may request from the Purchaser a photocopy of the last receipt justifying punctual payment of the premiums corresponding to said insurance. Said insurance policies must have a minimum duration equal to the duration provided for the execution of the order.
15. NON-PERFORMANCE OF THE PURCHASER
In case of non-performance or failure in punctual or adequate performance of any of the obligations of the Purchaser, as well as in the case of a declaration of an arrangement with creditors, liquidation or dissolution of its company, the Seller will have the right to give notice of the total or partial rescission of the contract or the suspension of its execution in whole or in part. This will be done through authenticated notification, with no need for ulterior warning of non-performance or judicial intervention, and without the Seller having to be held responsible for the damages, without affecting any other rights supporting the Seller. As soon as any of the aforementioned circumstances occur, all claims that the Seller has with respect to the Purchaser will become immediately payable. If the Purchaser does not make the payment punctually or in its totality, on the first demand of the Seller, it must return the unpaid products. If said products are not returned by the Purchaser, the Seller, without affecting any other of its rights and actions, will be legitimized to recover the products sold with no need for a new demand, notification or judicial intervention.
16. FORCE MAJEURE
“Force Majeure” means, for the purpose of this contract, the existence of any contingency, circumstance or cause which is beyond the control of the party who invokes it, including, but not limited to, the following circumstances: imposition or submission to a law, regulation, decree, order or request of any authority (national, state, autonomous, provincial or municipal), confiscation, riot, war, disturbances, fires, floods, earthquakes, storms, explosions, strikes, closings, stopping of machinery or factory, impossibility of obtaining raw material, equipment, gas oil or transport. If due to Force Majeure, any of the Parties cannot meet an obligation of this Contract other than the payment price, said Party is exonerated from performance of it, as long as the party notifies the other party, indicating the beginning of the situation of Force Majeure. The Party invoking Force Majeure must send immediate notice after the ending of the cause of the Force Majeure. The Seller will not be responsible to the purchaser for any loss or damage resulting from non-performance or occasional or total failure in performance of its obligations due to force majeure. This clause is applicable to the Seller and to its plant, and to the Purchaser and its plant. Notwithstanding the foregoing sections of this article, if the Purchaser is affected by Force Majeure it will not be relieved of any of its obligations to accept and pay for the shipments made prior to the receipt by the Seller of the written notice from the Purchaser of the situation of Force Majeure; neither can the Purchaser invoke the reason of Force Majeure to delay the payment of the amounts owed. If a reason of Force Majeure appears, the seller will have the right to distribute, in the manner it considers appropriate, the amounts of useful products among its customers and their own requirements.
The Seller (who in this respect, is understood to mean all the companies forming part of the same group as the Seller) has the right to compensate any amount owed it by the Purchaser (who in this respect is also understood to mean all the companies which form a part of the same group as the Purchaser), against any amount payable to the Purchaser.
Neither of the parties will transfer the contract without the written consent of the other party, with the sole exception that the Seller may transfer the contract, wholly or in part, to any of the companies forming a part of its same business group.
19. CATALOGUES AND DOCUMENTS
The data contained in the catalogues and technical documents will be binding on if explicitly stipulated as such in the same. All documents provided by the Seller to the Purchaser must be considered to be the exclusive property of the former, and must be considered confidential and may not for any reason be transferred, nor copied, nor used without previous written consent of the Seller. If the order is not made, all catalogues and other documents presented must be returned immediately to the Seller.
20. CONFIDENTIALITY AND DATA PROTECTION
In compliance with the Organic Law 15/1999 of December 13th on Protection of Personal Data, personal data provided by the Purchaser will become a part of the file of customers of the Seller, whose objectives are the maintenance of the contractual relationship , the control and management of sales and their corresponding collection of payment. The Seller will treat said data with the maximum confidentiality, making the commitment to not use them for any purpose other than that for which they have been obtained, as well as storing them, taking the appropriate measures to guarantee their security and prevent their unauthorized alteration, loss, processing, or access. The Seller will keep professional secrecy with respect to the aforementioned personal data, even after the contractual relationship has ended. The Purchaser authorizes the Seller to store its data for a period of five years once the contractual service has been completed. The Purchaser may exercise the rights of access, rectification, cancellation and opposition through notification in writing to the attention of the Head of Data Protection of the SAMCA Group, Paseo de la Independencia 21, Planta 6ª (50001 – Zaragoza).
These conditions will be considered severable, and if any of them are invalidated for any reason, the rest will keep their validity with full force and effect.
In case of discrepancy between texts in the Spanish language and texts in any other language relating to the sale of the goods, the text in the Spanish language will prevail.
This relationship will be governed by Spanish legislation. The parties expressly renounce any other forum or jurisdiction to which they may have right, and agree to submit to the courts of Zaragoza any difference or litigation relating to the validity, interpretation, compliance with or execution of the General Sales Conditions, as well as the acts or transactions included in the same.