GENERAL TERMS AND CONDITIONS OF PURCHASE
A.- OBJECT AND INTERVENING PARTIES
The present General Conditions (hereinafter `GC`) is entered into and made effective as of date of approval of the Purchase Order, once the latter has been accepted by the purchaser/client. GC shall govern the offer and sale of goods and services (hereinafter ` the Product(s)`) offered by Daplast, S.L., company duly incorporated under the Laws of Spain, with registered office at Ctra. de Palma del Río, km 9, Córdoba, 14005, with NIF B-14029011 (hereinafter, `the Provider`), and contracted by the Client (hereinafter `the Client`); unless special terms are specifically agreed to in the accepted Purchase Order or in the Contract signed and accepted by both Parties. Thus, in the event of contradiction or divergence between these GC, and the specific/particular conditions contained in the Purchase Order/Contract, the latter shall prevail over the former, due to the fact that these mentioned conditions have been established on an individual basis.
B.- OFFERS, PURCHASE ORDERS AND CHANGES TO THE PURCHASE ORDER
1. As a standard, offers shall be accepted within 30 days. The offer is an estimated budget, subject to readjustments upon review on plans and measurements on site. The acceptance of the offer shall formalize the Purchase Order.
2. Through signing the Purchase Order the Client acknowledges his/her/its acceptance and approval of all Product details, since the Purchase Order reflects all details of the order. The Purchase Order must be in writing and must be signed by the Client to be considered binding. The Client’s acceptance via e-mail shall also serve as evidence, provided that the requirements or modifications to the Purchase Order are described in the mentioned e-mail.
3. The signature of the Purchase Order and plans (if any) by the Client, are indispensable for the approval of the Purchase Order. In addition, when the payment has been agreed in full, not postponed, the Purchase Order shall not be approved until the Client complies and has made full payment of all amounts.
4. During the days that may pass from the Provider sending the Purchase Order until the Client signs it and/or makes the payment, the dates of departure of the Products and / or any other change in the conditions mentioned in the Purchase Order may be altered. In case of delay signing the Purchase Order, making the advance payment or sending any documents related to the payment, the Provider shall leave the Purchase Order pending, with departure date pending or may delete it.
5. If the Client has urgency in receiving the Products, the postage may be revised and an urgent postage may be calculated, notifying the Client and provided that the Client signs and/or makes the corresponding payment.
6. The Provider reserves the right to make, within a reasonable timeframe, any technical changes or modifications of dates. In addition, it also reserves the right to make changes in shape, colour and/or weight, and to modify the final design of the Product offered in the Purchase Order, in order to improve its functionality without impairing its quality. Such changes shall be made subject to the Client’s prior knowledge and acceptance.
7. The variations introduced on the original project by the Client must be communicated to the Provider in writing, explicitly indicating the variations that shall affect the Product, unequivocally describing the variations. Such notification shall be dated, signed and sealed by the Client. The Client shall bear any costs incurred as a result of the expenses caused by such change.
Prices for Products and/or services rendered by the Provider shall be charged on the basis of the valid prices stated in the Purchase Order.
1. The form and term of payment shall be established as detailed in the Purchase Order.
2. Advance payment shall always be made by bank transfer. The transfer shall be deemed received when credited to the Provider’s bank account. A receipt/bank slip provided by the Client shall not be valid. Cash payments may be accepted, always on an exceptional basis and at the Provider’s discretion. Under no circumstances payment by cheque shall be possible.
3. Purchase transfers must be made by the Client according to the deadlines established in the Purchase Order.
4. In case of late payment of the invoice, the Provider may demand payment of all interests and financial expenses provided for in the Law 15/2.010 of 29 December, which establishes measures to combat late payment in commercial transactions, or any future ruling to replace it, plus the reasonable costs of lawyers and solicitors generated by the credit claim.
5. The Provider may apply any payment received from the Client to the payment of any of the said Client’s outstanding accounts, at its own discretion.
E.- SHIPPING AND DELIVERY
1. The general conditions of delivery, as well as the applicable Incoterm® 2020 of the Products are agreed in each Purchase Order by both Parties.
2. The delivery period shall commence upon receipt of the signed Purchase Order or effective payment of the agreed amount in the case of payment on account. The Provider also reserves the right to deliver the goods/Products in partial deliveries.
3. If it is agreed by both Parties that the Provider shall carry out the delivery and/or installation of the Products, the Client must inform the Provider the need of occupancy/occupation permits/license and/or licences for the loading and unloading of materials, if any, with 15 working days prior to shipment/delivery. Otherwise, any incidence, cost and / or penalty caused by the violation of the said duties shall be borne exclusively by the Client, and the Provider may pass any cost charged on to them for the said reasons.
4. Prior to installation, if the Provider has to perform it, the Client shall be contacted by the person responsible in order to specify the installation details (trying to avoid unforeseen events that may interrupt or hinder the normal course of assemblage), among them: (i) Date and time for the beginning and (approximate) end of the installation, (ii) approval of the plan by the Client, (iii) appointments with work managers, etc. These and other points are filled in the `Installation check-list` which is sent to the Client via fax/email for his knowledge and approval. Once the installation finalized, the Client must design an authorized in the place of installation or facilities where the delivery takes place, who shall have to sign the `Formal Certificate of Receipt of the Installation` which indicates the Client’s agreement with the work carried out. In the event the Client does not sign the `Formal Certificate of Receipt of the Installation` and the Provider does not receive any notification or claim about the installation during the (5) days following the sending of the Act by the Provider, it will be understood as tacitly accepted by the Client.
5. If the Provider has to perform the installation, the quotation shall be calculated for an installation on cement of quality C20/25 or higher, non-cracked and with a minimum slab thickness of 10 cm, according to the indications of the anchorage manufacturer, by default. For this reason, a change in this quality may result in a change in the quotation and its conditions. The Provider cannot guarantee the installation of the Product if the grandstand does not meet the minimum requirements necessary for the correct fixing of the Product.
6. If the installation is not performed by the Provider, the assemblage must be performed in accordance with the manufacturer’s plan and manual of installation and use. The Provider is not responsible for the consequences derived from a bad assemblage or bad maintenance of the Product. In this case, the Client must furthermore design an authorized person in the place of installation or facilities where the delivery takes place, who shall have to sign the Delivery Notes, presented by the person authorized by the Client for this purpose. In the event the Client does not sign the Delivery Note and the Provider does not receive any notification or claim about the installation during the (5) days following the receipt of the Delivery Note by the Client, it will be understood as tacitly accepted by the Client.
7. Said authorized person, who signs the formal delivery notes and/or Formal Certificate of Receipt of the Installation, shall provide his/her data. This obligation must be extended to those postages that the Client carries out by its own means.
8. With reference to the packaging/containers used, the Provider is subject to the 1st additional provision of the packaging law 11/1997. The final recipient is responsible for their proper management.
9. The plastic in the containers can be reused. The Provider recommends the Client to carry out a correct separation and management of them at the end of their useful lives.
F.- RESERVATION OF TITLE
1. The Products shall not become the property of the Client until the Client has fulfilled all its payment obligations as a result of its business relations with the Provider.
2. In the event that the Client fails to fulfil its obligations to the Provider, the Provider shall be entitled to demand the return of the Products without granting any extension and without termination of the signed Contract or Purchase Order. The Provider’s acceptance of the Products returned shall only constitute termination of the Contract or Purchase Order if it expressly declares so in writing.
3. In the event that the Goods/Products are mixed, combined or processed together with goods owned by a third party supplier, the third party shall not be deemed to be acting on behalf of the Provider; for this reason, the claimant shall not have right to rise any claim against the Provider (by reason of the processing).
G.- COMPENSATION FOR DAMAGES
1. Claims for indemnification by the Client in case of slight negligence on the part of the Provider (or by its personnel or other persons employed while performing their functions) are excluded, unless the negligent duty in question is of substantial importance for achieving its purpose.
2. Except for direct damage to a Product or personal injury caused by a defective Product or service, the maximum amount of recoverable damages, in any event, shall be limited to the price invoiced for the Products or services for which damages are claimed.
3. In no event shall Provider be liable for indirect, consequential, special or exemplary damages, or for loss of profits, in connection with or as a consequence of the signed Contract/official Purchase Order or GC. The Provider shall only be liable for indirect or consequential damages or for unforeseeable damages if due to itself or a member of its staff seriously neglects his/her obligations.
1. Only the characteristics of the Products corresponding to the description made by the Provider in the Purchase Order or Contract will be considered as insured. Public statements or advertising by the Provider are not considered as part of the agreed information on the characteristics of the Products. In the case of packaging, the photograph that appears on the budget shows the packaging model, not the colour.
2. If, once the Product has been supplied, the Client wishes to change the model, the Provider may analyse such request, reserving at all times the right not to carry out such change. If such an exchange takes place because the Provider accepts it, the Client shall bear all the expenses caused by such exchange, such as: transport costs, installation costs, revision of material, replacement costs, etc.
3. Returns for defect and/or serious errors caused by the Provider:
– If it was agreed that the shipping and delivery of the Purchase Order was carried out by the Provider and, provided that such defect was caused by the transport or quantity defects, the Client must indicate to the Provider in writing, by means of comments on the delivery note and by photographs any obvious defects in quantity or breakage due to transport (e.g. broken boxes, deformed boxes, loss during transport, etc.) found within 48 hours of delivery of the Products, meaning (i) within 48 hours after the Delivery Note of the Products has been signed or (ii) within 48 hours after the Delivery Note is understood tacitly accepted by the Client, that it to say within 48 hours after the 5 days’ period after receipt of the Delivery Note. In the event that the Provider does not receive any of these evidences during the aforementioned period, the claim for guarantee actions shall be excluded and the claim for any recourse shall be impossible.
– However, the warranty for the delivered Products is two years after the delivery of the Products has been accepted, meaning (i) within 2 years after the Delivery Note has been signed or (ii) in the event the latter was not signed, within 2 years following to be understood tacitly accepted by the Client, that it to say 2 years following the 5 days’ period after receipt of the Delivery Note. This guarantee covers only manufacturing defects, excluding damage caused by improper use and/or maintenance of the Products. In the event that the Provider does not receive any notification or complaint during the aforementioned period, the claim for warranty actions shall be excluded and the claim for any recourse shall be impossible.
– If it is agreed that the installation is carried out by the Provider and this is defective, these detected defects shall be communicated in writing within 6 months from the date of signature of the Act of formal reception of the installation, or in the case the latter was not signed, within 6 months from the tacit acceptance of the Act by the Client; that it to say within 6 months following the 5 days’ period after sending of the Act. In the event that the Provider does not receive any notification or claim during the aforementioned period, the claim for guarantee actions shall be excluded and the claim for any remedy shall be impossible.
4. It is the Client’s duty to prove that the conditions for making a claim occurred. In particular the Client must prove the defect itself, the time at which it was detected and the appropriate claim for defects.
5. After notification by the Client to the Provider of the existence of defects in the Product/services supplied by the Provider within the time limits mentioned in point H.3 above, the Provider shall proceed to their analysis and verification. Once the Provider verifies and confirms that the defect has been caused by its negligence, error or gross negligence, the Provider shall proceed to replace the Product/service (affected by the defects) that needs to be changed.
6. The warranties referred to in paragraphs H.2 and H.3 shall be void when the damage is due to (i) misuse by the Client, (ii) manifest abuse by the Client, (iii) an accident or application of forces or pressures outside the Client’s normal use, (iv) alteration or modification of the Products by the Client, (v) spare parts intended for different seats that are processed/included in the Products by the Client, (vi) improper cleaning of the Client, (vii) during the period of storage after delivery to the Client, (viii) during the installation/assemblage, if carried out by the Client, (ix) exposure to extreme environmental conditions at the place where they are installed or stored (at the Client’s facilities).
I.- FORCE MAJEURE AND TERMINATION
1. Force majeure of any kind, any unforeseeable operational interruption, interruption of transportation or shipment, theft of the Products, fire damage, flooding, any unforeseeable shortage of labour, power, raw or ancillary materials, strikes, lockouts and any other industrial action, government orders or any other obstacle beyond the Provider’s control which reduce, delay or cause an unreasonable burden to production, shipping or delivery, shall relieve the affected party of the obligation to deliver or to accept delivery while the disturbance remains and depending on its extent.
2. Conclusion and termination is conditioned to correct and timely delivery by the Provider’s own suppliers. This only applies if the Provider is not responsible for the lack of supply, in particular, in the event of termination of a procurement transaction with the provider´s own supplier. The Client shall be informed immediately when the service is not available. The return of the monetary compensation shall be effected without delay.
J.- INDUSTRIAL AND INTELLECTUAL PROPERTY
Industrial property rights, such as patent rights and utility models, distinctive signs and designs and those of an intellectual nature, for example, on the website `www.daplast.com ` or the trademark, etc., which exist on the Products supplied by the Provider and acquired by the Client, shall remain the exclusive property and ownership of the Provider.
L.- APPLICABLE LAW AND JURISDICTION
The provisions of the Spanish Civil Code shall apply to anything not provided for in the contractual relations between the Provider and the Client, which are the object of these GC. With express waiver of any other jurisdiction that may correspond to the Parties, all disputes arising in relation to this document shall be submitted to the Courts of Cordoba.