GENERAL CONDITIONS OF SALE OF JOSEFA ESTELLÉS MAYOR, S.L.U
1.- Scope of application.
(1) These general conditions of sale (hereinafter, “GCS”), shall be applicable to all of the sales, supplies and, in general, services provided or rendered, as well as the offers related to same, which Josefa Estellés Mayor, S.L.U. (hereinafter, the “Company”) performs for other companies or businesses (hereinafter, the “Clients”).
(2) The application to the relationship established between the Company and the Clients of any other general conditions different from these and which may be held by the Clients is expressly excluded, including cases in which the Company is aware of same, without it being necessary for the Company to make any kind of reservation or caveat in this respect.
(3) These GCS shall be applicable to all of the present and future relationships involving the Company, without the need for this to be expressly agreed with respect to each business deal. These GCS shall be understood to be accepted by the Clients by the simple act of placing an order and, in all events, at the latest, at the moment of receiving the goods.
(4) Any modification of these GCS shall be confirmed expressly and in writing by the Company
2.- Offers and orders.
(1) The offers and cost estimates of the Company are non-binding and, consequently, are subject to adjustment at any time until the order placed by the Client and based on an offer or cost estimate is confirmed in writing by the Company.
(2) Information relating to products and services of the Company is merely indicative and is approximate.
(3) All orders, in order to be legally binding, shall be confirmed in writing by a person authorised to represent the Company. Therefore, no contract exists without confirmation of the order by the Company. In the case that a good or service is provided without prior confirmation in writing of the order, the delivery note or invoice issued shall be considered to be confirmation.
(1) The prices are non-binding and may be adjusted by the Company at any time, including packaging and packing prices.
(2) The prices shall be based on incoterm 2010 agreed with respect to each individual business deal.
(3) Unless otherwise agreed, the prices shall be applicable only to supplies included in a single delivery and to a single destination.
(4) The Client shall bear the cost of any fluctuation in exchange rates in transactions performed in a currency other than the euro.
(5) The Company may adjust the prices accordingly, if after the conclusion of the contract, the costs of raw materials, accessories, energy, wages, salaries, transport, customs duties or other costs, etc., vary in such a way as to increase the cost of production of the products supplied. The Client shall be notified of the price adjustment and may object to the adjustment within seven (7) days after receipt of the notice. In the event of an objection by the Client, the Company may either elect the termination of the contract, or the delivery of the products at the agreed price. The Client shall be notified of the decision as soon as possible. In the event of a termination of the contract, the Client shall have no further claims on these grounds.
4.- Delivery of the goods.
(1) The delivery obligations of the Company are understood always to be subject to the punctual supply, without defects, of materials and merchandise by the Company’s suppliers and on the Company’s production and supply capacity.
(2) Transport shall be at the cost and risk of the Client, in accordance with the incoterm agreed for each individual business deal.
(3) Unless otherwise agreed, agreed delivery dates are non-binding. Unless otherwise agreed, deliveries shall be made in approximately equal monthly instalments. Delivery of large quantities shall require prior agreement, even if it is agreed along a certain time that delivery shall be agreed in accordance with the Client’s needs.
(4) If the Company has to make a late delivery, the Client shall grant an appropriate grace period. Upon expiry of the grace period, if the delivery has not been made, the Client may terminate the contract. Any other action or claim by the Client against the Company is expressly excluded other than the termination itself.
(5) If the Client does not accept the delivery on the date or term agreed, it shall bear all costs which might arise with respect to the delivery, as if it had been made. In this case, the Company may store the goods at the cost and risk of the Client, either in its own facilities or, if this is not possible, in the facilities of a third party.
(6) In the case of operational problems, delay in the delivery of materials by the suppliers of the Company, difficulties in finding means of transport, traffic problems, force majeure, strikes, management lockouts, administrative intervention or any other event which substantially hinders or prevents the delivery, the Company may either extend the delivery deadlines or withdraw from the contract. These rules shall also be applicable when such events affect the suppliers of the Company. The Client may request the Company to declare, within a reasonable period of time, if it intends to withdraw from the contract or to make the delivery within a reasonable extension of the deadline. If the Company does not declare its intentions, then the Client may withdraw from the contract.
(7) Maritime embarkation of the goods presupposes open and unrestricted navigation. This provision also applies to embarkation via seaports and FOB delivery after the river transport necessary from the factory to the seaport for exportation. Any surcharges for high or low water shall be borne by the purchaser.
5.- Terms of payment.
(1) Unless otherwise agreed, invoices are payable net to the Company within thirty (30) days after the date of invoice. The payment shall be made to the bank account indicated by the Company and the value date shall be within the term of payment. The payment date shall be that on which the company has at its disposal the amount in question in the Bank.
(2) In the case of delay in the payment, the Client shall pay interest for late payment at the basic rate of the Central European Bank plus eight per cent (8%), applicable to the amount pending to be paid, without prejudice to the Company’s right to claim for any damages which it may have suffered above the amount of said late payment interest, or to its right to take legal and contractual action, suspend the deliveries, or even terminate the contract.
(3) The Client may only set off its credits against credits of the Company, or retain payments by virtue of credits, if the aforesaid credits are liquid, due and payable, and are expressly recognised by the Company or by virtue of a final judgement of a Court.
(4) If the Client fails to make payment in full of an outstanding invoice, including late payment interest, the Company shall not be obliged to make any further delivery under any current contract. In such event or in the case of the existence of doubt with respect to the solvency or the capacity of the Client to make payment, the Company may require advance payment of all or part of the price of any supplies included under any current contract, as well as the provision of sufficient guarantees. Likewise, all credits corresponding to supplies already delivered shall become payable. If, after the corresponding requirements, the Client fails to make payment of the amount pending within a reasonable term established by the Company or if there is doubt of any kind with respect to the Client’s solvency or capacity to make such payment, the Company shall be entitled to terminate all current contracts or demand their performance, with the right, in both cases, to claim compensation for damages for breach of contract. The Company may, furthermore, in such cases, require the immediate return of the goods supplied with retention of title.
6.- Retention of title.
(1) Until all amounts pending (including any balances in favour of the Company derived from a current account relationship) due to the Company for any reason, currently or in the future, are paid by the Client, the guarantees specified in this Clause 6 shall be provided to the Company, which the Company will release upon request of the Client and at the sole discretion of the Company, provided that their total value constantly exceeds the existing credit rights of the Company pending payment by more than twenty per cent (20%).
(2) The Company shall retain title to the goods.
(3) The Client may, in the normal course of its business, provided that it is up to date in the fulfilment of all of its obligations, sell the goods subject to retention of title. Unless the Company gives its consent in writing, the Client is not entitled to create any type of security in any way on the goods subject to retention of title, nor to transfer its ownership as a security.
(4) The Client irrevocably assigns to the Company, generically and totally, by the simple act of contracting with the Company, without the need for any specific additional agreements with respect to each individual case, all of the rights over the goods subject to retention of title, in particular, the credit rights which it holds with regard to same (including all current account balances) and which derive from the disposal of the goods to third parties or under any other title (including, but not limited to, rights resulting from an order for collection arising as a result of the resale of the goods, insurance or tort). The Client may, however, itself, in its own name and at its own cost, but to the account of the Company, collect the credits assigned to same, unless the Company revokes this faculty in the case that the Client fails to meet correctly and punctually its payment obligations.
(5) In order to ensure the assignment in advance of credits made in favour of the Company, the Client shall invoice the resale of goods provided by the Company separately from other goods.
(6) In the event that a third party should seize the goods subject to retention of title (in particular, as the consequence of a pledge), the Client shall notify of the existence of the retention of title by the Company and immediately inform the Company of the seizure.
(7) In the case that the Client should process the goods subject to retention of title or combine or mix them with other goods, the Company shall have co-ownership of the new resulting products in the ratio of the invoice value of the goods subject to retention of title with respect to the invoice value of the other goods used. If the title of the Company to the goods is extinguished as a result of the combining or mixing, the Client irrevocably assigns to the Company, by the sole act of contracting with the Company, its property rights over the new product or stock to the extent of the invoice value of the goods subject to retention of title, undertaking to keep the new product or stock, for the Company, without charge. The co-ownership rights resulting therefrom shall be deemed to be goods subject to retention of title, to which this condition shall apply accordingly.
(8) In case the Client infringes the contract, in particular, through default of payment, a serious deterioration in its financial situation or if it becomes apparent that there exists any factor which puts at risk the fulfilment of the contract by the Client, the Company shall have the right to recover the goods subject to retention of title or, if necessary, to revoke the authorisation given to the Client to collect credit from third parties and directly to claim said credits from the third parties, notifying them of the assignment made in favour of the Company. The Client authorises the Company so that, through the persons designated by it to recover the goods, it may access and move around the facilities and sites where the goods subject to retention of title are located. The Client shall, at all times, when so required by the Company, provide the Company with all of the documentation and information necessary in order to claim the credits assigned to the Company.
(9) The exercise by the Company of the rights resulting from the retention of title shall not lead to the termination of the contract by the Company.
7.- Defects and guarantee.
(1) Complaints regarding the number and condition of packaging shall be made immediately, at the time of delivery of the goods, to the person in charge of carrying out the transport, and such complaints shall be recorded on the delivery note and the bill of lading. All subsequent claims of such kind shall be excluded.
(2) Complaints regarding the number, quality and correctness of the goods supplied, and complaints regarding visible defects shall be notified to the Company in writing, in detail, as soon as possible and, in all cases, within four (4) days following the delivery date, specifying, in all cases, the number of the delivery note. If the Client should fail to notify of such defects, the goods shall be deemed to have been accepted, except in the case of hidden defects.
(3) In the case of hidden defects, the complaint shall be made, in writing and in detail, quoting the delivery note number, at the latest within three (3) days of their discovery. Otherwise the goods supplied shall be deemed to have been accepted with said defect. The Company shall only be responsible for hidden defects which become apparent within thirty (30) days following the delivery date.
(4) The certificates of analysis of the goods have only an informative purpose and shall not be considered in any case a guarantee regarding the properties of the goods. Said certificates shall not release the Client from its obligation to inspect the goods and notify any possible defects.
(5) The Client shall give the Company the opportunity to examine the lack of conformity, otherwise all rights under the guarantee become without effect. Goods may only be returned with the Company’s express prior consent. A claim for defects of goods shall not discharge the Clients from the obligation to pay the purchase price.
(6) With regard to claims under the guarantee, the Client shall have the right, at the discretion of the Company, to the substitution of the defective goods, their repair, the modification of the contract or a reduction in the price of the goods subject to the claim. In the case of the substitution of defective goods by other goods, if the new goods are also defective, the Client may request the modification of the contract or the reduction of the price of the goods. The guarantee may only be invoked with respect to hidden defects in origin, and consequently all defects resulting from atmospheric phenomena or incorrect storage are excluded. In the same way, goods which have been processed, mixed, transformed, modified, manipulated or used in a manner other than that foreseen are also excluded from the guarantee.
(7) Rights deriving from the guarantee may only be exercised by the Client and may not be transferred to third parties.
8.- Liability for damages.
(1) The Company shall not be liable for damages, whatever the legal basis of the liability (impossibility of providing the good or service, default, defective supply, breach of contract, breach of pre-contractual obligations, extra-contractual liability, unfair activity, etc.), unless there is malicious intent or gross negligence.
(2) This limitation of liability shall not apply in the event of the breach of essential contractual obligations, an injury to human life, body or health, and in those cases in which liability is mandatory by law, for example, in accordance with the applicable regulations governing civil liability for damage caused by defective products.
(3) In any case, the Company shall only be liable for the direct damage and the typical loss foreseeable at the time of the conclusion of the agreements.
(4) Action for damages against the Company may only be taken by the Client, and may not be transferred to third parties.
(5) If the damage is covered by an insurance policy of the Client, the Company shall only be liable for the damages really suffered by the Client, such as increased insurance premiums or interest derived from the payment of the compensation until the regularisation of the compensation for damages by the Client’s insurance company.
(6) To the maximum extent allowed by law, the liability of the Company shall not exceed the agreed sale price.
9.- Industrial and intellectual property rights.
(1) The Client shall examine whether the use of the goods infringes the industrial or intellectual property rights of third parties. By the delivery of goods, the Company does not guarantee that any use of said products will not infringe the industrial or intellectual property rights of third parties.
(2) The Client shall inform the Company of any third-party infringement of the industrial and intellectual property rights of the Company of which it has knowledge.
(3) If the Company manufactures the goods following the instructions of the Client, the Client shall hold the Company harmless against any possible action or claim by third parties for the infringement of industrial and intellectual property rights.
(1) The Company’s Department of Technical Application and Development and the special departments will advise the Client to the best of their ability on the basis of current industrial practice, the development achieved by the Company and their own knowledge and experience.
(2) The Company shall only be liable for the consultancy services provided under the terms contained in points 7 and 8 of these GCS. Nevertheless, the advice provided does not release the Client of its obligation diligently to check and verify the application of same through its own analysis under the corresponding conditions of application.
11.- Assignment of the use of packaging. Environmental management of packing materials.
(1) Packaging material designated as “on loan” is the property of the Company. Such material shall be handled with care, properly stored and kept dry and, after emptying, shall be returned carriage included, at the latest within the six weeks following the date of dispatch of the goods, to the place of dispatch, without any damage, in a perfect state of repair and ready for re-use. After the expiry of said period, if the packaging material has not been returned, the Company may require the payment by the Client of a late payment charge for each unit of packaging and each initiated month.
(2) The Client shall bear the risk of loss and damage to packaging material from the date of dispatch until the date of return of the packaging material to the Company facilities. The Client shall also bear the repair and cleaning costs.
(3) The Company’s packaging material shall not be used for the storage or transport of any goods other than those originally contained in same. If the packaging material is not returned on time, the Company shall be entitled, after due notice, to charge the Client for the cost of replacement of each unit at the current price.
(4) The final possessor of the goods shall be responsible for the proper environmental disposal of the waste of the packing or used packing.
12.- Personal data.
(1) In accordance with the provisions of General Data Protection Regulation 2016/679 dated 27 April 2016 and Organic Law 3/2018 dated 5 December, on the Protection of Personal Data and guarantee of digital rights, Clients are informed that the personal data provided will be the responsibility of the Company. The Company will treat the personal data supplied to it for the purposes of attending to and managing the commercial relationship, as well as sending information on products and services of the Company when the Clients have given their consent. The processing of such data is based on the consent of the interested party when requesting the service or completing the request. The personal data collected will be treated with due diligence and security and complying in any case with the current legal provisions at all times. The data provided will be kept as long as the business relationship is maintained or for as long as necessary to comply with legal obligations.
(2) Under no circumstances does the Company contemplate the international transfer of personal data to third countries outside the EU. Clients shall have the right to file a complaint with the Spanish Data Protection Agency in the event that they consider that the current legal provisions on data protection have been violated.
(3) Clients may also exercise their rights of access, rectification, opposition, limitation of treatment, portability and cancellation by contacting ” Josefa Estellés Mayor, S.L.U.”, at the address at Calle Safareig s/n, Polígono Industrial de Rascanya Llíria (46160), Valencia (Spain); or by e-mail at the electronic address email@example.com
13.- Place of performance. Applicable law and jurisdiction.
(1) The place of performance of the deliveries and supplies and other services rendered shall be the place of dispatch of the goods. For payments, the place of performance shall be Lliría (Valencia – Spain).
(2) The relationship between the Company and the Client shall be governed by the Law of the Kingdom of Spain. The application of the United Nations’ Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded, as well as any other supranational uniform legal regulations. The rules governing conflict under Spanish law, in particular, the regulations governing forwarding, are also expressly excluded.
(3) Any dispute or controversy which might arise between the parties with respect to these GCS and/or the contracts signed under same shall be subject to the Jurisdiction of the Courts and Tribunals of the city of Valencia (Spain). Notwithstanding, and if it so desires, the Company may exercise legal action against the Client in the Courts of the Client’s domicile. Mandatory legal provisions in this field shall not be affected by these stipulations.
(4) If one or more provisions of these GCS are declared invalid or not effective, such invalidity or ineffectiveness shall not affect the validity and effectiveness of the rest of the provisions.
14.- Validity and updating of the General Conditions of Sale.
(1) In the event that any of the provisions of these GCS is declared null and void or becomes ineffective, the validity and effectiveness of the remaining provisions shall not be affected, and the provision that has been declared null and void or ineffective shall be replaced by another provision that, being valid and effective, comes closest to the economic purpose pursued by the parties through the provision that has been declared null and void or has become ineffective.
(2) Finally, the company reserves the right to modify, delete or update these GCS at any time.