General Considerations of Sale
General Considerations
1. The parties:
The parties shall be:
a.1. The member company of the SOLER & PALAU Ventilation Group which appears in the heading of these general conditions and which, for ease of reference, shall hereinafter be referred to as S&P (or the Vendor, or the Supplier), and
a.2. The natural or legal person that has the condition of businessperson, without in any case being the end user, who signs these general conditions or signs a firm order.
2. These General Conditions of Sale, which can be found on the Vendor’s website and which may optionally be sent to the customer attached to the proposal or acceptance of order issued by S&P, shall be deemed accepted without reservation of any kind on the part of the customer if said customer does not expressly reject them in part or in full, or if, following the proposal submitted by S&P, the said customer signs the firm order.
3. Sales and supplies made to customers by S&P of components, spare parts and products shall be regulated by these General Conditions of Sale, except in that which is expressly provided in the corresponding proposal or acceptance of order and which constitutes “the special conditions” thereof. All other conditions not previously expressly accepted by S&P shall not be valid and shall have no legal effect.
4. These General Conditions of Sale form a whole with the documents corresponding to the proposal or to the acceptance of order issued by S&P, and are contractual in nature.
PRODUCTS
Products shall be the components, spare parts or finished products manufactured by any of the companies that comprise the S&P group in any country, sold by the group company that appears in these General Conditions of Sale. The quality, technical specifications and quantities of said products shall be those that appear in the proposal or acceptance of order to which these conditions are attached.
PRICES
Sale prices shall be governed by the tariff provided to the customer, S&P reserving the right to modify the same when market circumstances so dictate. S&P expressly undertakes to inform customers of any such modification in the case of orders being processed.
Unless otherwise stated, for sales outside Spain, prices are “ex works”, net, and do not include VAT or any other tax, fee or charge, which shall subsequently be added at the corresponding rate in the invoice.
In the case of current proposals and following acceptance of the same, the validity of the indicated price is one month from the issue of the proposal. These prices shall be considered fixed for this period of time provided the conditions of payment specified in the proposal are maintained and except in the event the proposed supply consists in imported equipment subject to contingencies of currency exchange or the payment of customs duties and charges.
Once the order is accepted the price is considered fixed and may not be revised except when:
-Purchaser and Vendor have agreed a revision of the same in special clauses
or conditions;
-Delivery of the product has been delayed and Purchaser and Vendor have
consequently agreed to a price revision.
For domestic sales, the prices included in the applicable tariff shall remain valid and in force until a new tariff becomes effective or unless otherwise agreed in writing between the parties. Any VAT or other taxes applicable under the relevant legislation shall be charged in addition to the quoted prices.
PAYMENT METHOD
Payment shall be made into the Vendor’s bank account by the Purchaser on the invoice due date and in the agreed conditions or, failing this, in accordance with that provided in Law 3/2004, of 29 December and subsequent modifications (in particular, Law 15/2010, of 5 July). Payment shall be made with no deduction of any type, especially non-agreed withholdings, discounts, expenses, taxes or charges.
The stipulated payment term must be respected by the Purchaser, regardless of any delay in transport or delivery due to reasons beyond the control of S&P. For the purposes of Law 3/2004, delivery shall be deemed to be the date the customer is informed that the products are available. Except in cases where the Purchaser has also contracted the transport service through S&P, in such cases delivery shall be deemed to have taken place when the goods arrive at their destination.
Where and when it deems appropriate, S&P may request the guarantees it considers necessary to ensure due compliance with the contractual obligations the Purchaser has undertaken and may suspend deliveries until such guarantees are in place.
In the event of delay in payment(s), the Purchaser shall pay the Vendor, without prior demand and from the due date, default interest (in accordance with that provided in Law 3/2004, of 29 December and subsequent modifications) at a rate of 8% per annum on the sum(s) outstanding.
In the event the Purchaser incurs in delay in the agreed payments, S&P may suspend the shipment of future supplies without prejudice to its right to demand payment of the outstanding amounts from the Purchaser and to claim, where applicable, additional compensation for such interruption in supply.
S&P representatives, distributers, agents and sales staff are not authorized to receive payment for products, any such payment made to the same being considered null and void, except where otherwise agreed.
ORDER
Unless expressly agreed otherwise between the seller and the customer, all orders imply tacit acceptance without reservation of the present General Sales Conditions.
The products to be supplied must be clearly identified on the order, specifying their quality, constructive details, amount and technical conditions, as well as the data identifying the issuer of said order, in such a way that the issuer can be individually identified or the origin of the order can be determined. For standard catalogue products, it shall be sufficient to identify the relevant product reference, without the need to specify the remaining technical or product specifications. Orders must be placed in writing by any means that ensure they are received by S&P. For example, valid orders are considered to be those placed by email or electronic portals.
The start of the fulfilment of the order within the expected time period shall mean its acceptance on its own terms.
S&P will only respond in the event that it does not accept the order or when it wishes to make a change and/or comment on the order. In these cases S&P will send the Buyer acknowledgement of the order with the changes and/or comments to be made. The order shall only be considered effective once the Buyer accepts said changes and/or comments in writing.
These changes and/or comments must be accepted within a period of 5 days. Otherwise, the order will be considered unaccepted.
Any changes and/or variations in the scope of an order must always be notified to S&P in writing and must be expressly accepted by S&P in order to be valid.
DELIVERY TIME
If a delivery time is provided on the order it shall be indicative only and in no case binding on S&P, except where the company expressly accepts. In this case the delivery time shall begin to compute when:
i) the order is received by S&P.
ii) all the conditions needed for its execution have been met.
iii) if, where an advance part-payment has been agreed on, the advance has been received by S&P.
The delivery time shall be extended by a reasonable period if the order cannot be fulfilled for reasons outside S&P’s will and control. There shall be no compensation in this case.
If the delivery time cannot be met for reasons imputable to the customer, a reasonable extension shall be granted. However, in this case the customer will be responsible for all costs arising from the extension, regardless of origin.
Deliveries are understood to be made by making the product available to the customer.
In the case of sales outside Spain that include the transportation of products, deliveries shall be understood to have been made on time whenever the freight forwarder delivers them within the delivery time. If this does not happen, the breach will not be imputable to S&P.
The delivery time shall be extended if the purchaser changes the original order or is behind in its contractual obligations.
Except where agreed on with the purchaser, for sales outside Spain, transportation shall be at the cost, risk and account of the purchaser, meaning that S&P shall be held harmless for any claim regarding damage or impairment of supply and the purchaser shall be responsible for assuming these risks.
For domestic sales, except were agreed with the purchaser, transportation shall be at the cost, risk and account of S&P. The cost of transport shall be borne by the Purchaser in cases where the purchase does not exceed the minimum amount set by S&P. The Purchaser must provide the necessary unloading facilities to enable delivery to take place once the goods arrive at their destination.
INCOTERMS, TRANSPORT AND PACKAGING
Unless otherwise agreed in writing in the corresponding proposal or acceptance of order, delivery terms, for sales outside Spain, shall be EXW (Ex Works), and the Purchaser shall assume the contracting, costs and risks of transport from the agreed delivery point, as well as loading operations and the risks associated therewith. Where S&P agrees in writing to arrange transport, the applicable Incoterm and any specific services or requirements (including but not limited to special access permits, urban access restrictions, special unloading means such as crane trucks or platforms, or waiting times on site) must be expressly agreed prior to dispatch and may entail additional charges. S&P shall package the Products according to transport requirements unless otherwise agreed in writing.
STORAGE AND PUTTING AT DISPOSAL
When S&P notifies the Purchaser in writing that the Products are available, delivery shall be deemed made and S&P may issue the invoice accordingly. If, for any reason not attributable to S&P, the Purchaser does not take delivery/collection within 30 days from such notice, S&P may store the Products in its own or third-party facilities at the Purchaser’s cost and risk, and may charge storage and handling costs calculated as 5% of the net sale value of the stored Products (plus applicable taxes), without prejudice to the right to claim any additional proven costs of adequate storage, preservation, and handling.
Notwithstanding the foregoing, for deliveries within Spain, the invoice shall be issued upon dispatch of the Products from S&P’s warehouses.
RECEPTION OF MERCHANDISE
The Purchaser will revise and carry out the inspection of the merchandise with regard to quality and quantity at the moment it is delivered or made available to the said Purchaser. Any damage the product may have sustained during transit must be reported at this moment.
Any possible apparent defects must be notified to S&P within seven days from the date the products are delivered or made available to the Purchaser. Once revised and inspected, the merchandise will be considered accepted by the Purchaser, with the said Purchaser waiving all rights to make any claim against the Vendor.
Likewise, the Purchaser shall have a period of 30 days to report immediately and in writing any faults or hidden defects which appear in the merchandise, after which time the Purchaser will lose all rights to present claims for this reason against the Vendor.
Once the period of 30 days from delivery date has elapsed without S&P having received written notification of any possible defect or fault, the merchandise will be considered to have been accepted and the guarantee period will begin.
INDUSTRIAL AND INTELLECTUAL PROPERTY
All industrial and intellectual property rights pertaining to the products belong to S&P. Consequently, copying or reproducing the said products, or enabling them to be copied or reproduced by or for third parties, is expressly prohibited. This prohibition shall be extended to all direct or indirect employees contracted by the Purchaser who have access to the products.
GUARANTEE
Any claim made under the product guarantee is based on the assumption that the customer’s obligation to inspect the merchandise has been met.
The guarantee shall be invalid in the following cases:
i) use of components connected to other third-party products/ components, except when this possibility has been offered in writing;
ii) when the products are modified without S&P authorization, even if the components used are genuine S&P.
iii) when the products are used by the Purchaser/Vendor without respecting the technical and operating specifications supplied by S&P;
iv) deterioration produced by external events, accidents, and normal wear and tear, or by improper handling and/or usage of the product by the customer in contradiction to that contained in the corresponding users’ manual;
v) any other product defect attributable to the customer or third parties.
Any supplementary guarantee offered by the customer without consent from S&P shall also be invalid.
For the purposes of these General Conditions and without prejudice to the aforementioned exceptions, products are guaranteed for a period of twelve months from the date of delivery, provided the non-conformity derives from the origin, identity or suitability of the products, in accordance with their nature and purpose and with the rules that govern them. Where the applicable mandatory law provides for a different warranty period, such statutory period shall prevail.
The guarantee shall consist solely and exclusively in the repair or replacement of the products recognized as defective, the customer expressly waiving the right to any other compensation.
Repairs will be carried out by an authorized S&P technical service center, except in the case of express agreement with the Purchaser with respect to repairs and/or replacements of defective products being carried out in the facilities of the latter.
RESERVATION OF TITLE
S&P expressly reserves title (ownership) to the Products supplied until S&P has received full and effective payment of all amounts due by the Purchaser in relation to the relevant supply (including, where applicable, taxes, default interest, expenses and costs). Until full payment, the Purchaser shall refrain from any act of disposal, assignment, pledge or encumbrance over the Products and shall keep them duly identified as S&P property. If the Purchaser becomes subject to insolvency proceedings or any seizure, attachment or similar measure affecting the Products,
the Purchaser shall immediately notify S&P and take all reasonable steps to safeguard S&P’s title and rights.
RESPONSIBILITY FOR DEFECTIVE PRODUCTS
Pursuant to the provisions in Royal Legislative Decree 1/2007 approving the revised text of the General Law on the Protection of Consumers and Users, and to other complementary laws, as the producer of an integral part of the final product S&P shall accept no responsibility for damage caused by the product where and when said damage is produced by a defect attributable to the conception of the product into which the said part has been incorporated, or to the instructions given by the manufacturer of that product.
RETURNED MATERIALS
A period of 15 days is established from the date of reception of the merchandise for the Purchaser to notify S&P of its intention to return material and to justify such return, and to reach agreement, where applicable, with S&P regarding the procedure to be followed. All such notifications must be made in writing and delivered in a reliable manner.
Returns or shipments of material to S&P facilities, whether for crediting, replacement or repair, must be made by prepaid transport. and at the Purchaser’s sole cost and expense.
In the case of a return due to error in the order or for reasons beyond S&P’s control, a minimum of 50% of the net value of the material returned shall be charged in respect of participation in the costs of revision and repackaging.
S&P will not accept the return of materials that have been used or assembled in other equipment or installations for which they were not intended, or in the event that they were intended for such assembly or installation, where this was carried out in contradiction to instructions given by S&P. S&P will also not accept the return of products that are no longer included in its current catalogue or that have been discontinued.
SANCTIONS COMPLIANCE AND NON RE-EXPORTATION TO RUSSIA
The Purchaser undertakes to comply at all times with the regulations in force regarding sanctions and export controls, including, but not limited to, Regulation (EU) No 833/2014 and its subsequent amendments. In particular, the Purchaser shall not sell, export, re-export, supply or divert, directly or indirectly, to the Russian Federation or for use in Russia, any product supplied by S&P whose export or re-export is prohibited or subject to restrictions under such regulations. Furthermore, the Purchaser undertakes not to carry out or facilitate any actions intended to circumvent these restrictions and to pass on this obligation to its own customers and to any third parties involved in the supply chain. Breach of this clause shall constitute grounds for immediate termination of the contractual relationship, without prejudice to any legal actions that may be available to S&P.
DATA PROTECTION
In compliance with the provision of Organic Law 3/2018 of 5 December regarding Personal Data Protection, and the General Data Protection Regulation the personal data provided by the Buyer shall be added to an automated file for which S&P is responsible. Its purposes are to maintain the contractual relationship, and to control and manage sales and their corresponding collections.
CONFIDENTIALITY
The parties shall maintain and keep confidential, not divulging to any third party, all documents, data, materials and information provided by each of them, not disclosing them to any third party or using them for any purpose other than the fulfilment of the present agreement, unless expressly authorised to do so.
This notwithstanding, the seller may provide the name of the Buyer and basic supply data as part of their commercial references.
CODE OF ETHICS
The Purchaser acknowledges that the Soler & Palau Group, as part of its corporate compliance programme, has a Code of Ethics which sets out the principles, values and ethical and behavioural guidelines that underpin the S&P Group’s culture. The purpose of this is to establish a framework to serve as a guide for maintaining a high standard of ethics and responsibility amongst its members and to prevent any activity that breaches the law. This Code is publicly available via the following link Integrity Line and in this regard, the Purchaser declares that they have read and understood the Code of Ethics and, in particular, the provisions relating to the anti-corruption and anti-money laundering policy.
SEVERABILITY
These conditions are deemed to be severable, and if any of them are invalidated for any reason the rest will conserve their validity with full force and effect.
APPLICABLE LAW
These General Conditions of Sale shall be governed and interpreted in accordance with Spanish law.
The parties agree to submit any litigation regarding the interpretation, execution or resolution of this contract to the competence of the courts and tribunals of the city of Barcelona, waiving any other jurisdiction that may correspond to them.