I. Scope
1. These General Terms and Conditions shall apply without exception to all orders placed with us, including future orders, even if the order from the customer contains divergent terms and conditions. Such terms and conditions – regardless of when we receive them – are explicitly rejected.
2. Amendments and additions to these General Terms and Conditions of Business shall be made in writing.
II. Quotation/order confirmation
1. Our quotations are non-binding. Any documents such as catalogues, brochures, illustrations, etc. supplied with the quotation contain only approximate details and descriptions. Ownership and copyright of drawings, designs, models and other documents rest with us. Such documents must not be made available to third parties and must be returned to us immediately upon request.
2. Contracts shall be formed as a result of our written order confirmation, the contents of which shall prevail.
Amendments and subsidiary agreements shall be in writing.
3. The right of technical modifications is reserved.
III. Delivery and transfer of risk
1. A binding delivery date shall be agreed only when it has been confirmed as such by us in writing. Binding delivery dates are subject to the precondition that the customer has notified us in full and correctly of all technical prerequisites, including all dimensions, etc. If it should transpire that this is not the case or if the performance of the order is amended by agreement, we shall not be responsible for resultant delays and the delivery date shall be amended as appropriate.
2. A binding delivery date shall be deemed to have been adhered to if the delivery is dispatched on this date to the customer or the specified delivery address. Adherence to any delivery date is subject to the timely performance of contractual obligations by the customer, including the timely receipt of agreed advance payments.
3. The delivery date shall be further adjusted as reasonable in the event of actions in the context of labour disputes, in particular strike and lockout, as well as the occurrence of other unforeseeable obstacles not of our volition, where such obstacles have a demonstrable and significant effect on the manufacture or delivery of the delivery item. This shall also apply if such circumstances arise in the case of our supplier.
4. In the event of a delivery delay for which we are responsible, the customer shall be able to withdraw from the contract only after fixing a reasonable final deadline of at least four weeks and explicitly giving notice of rejection of the contract. Claims for damages shall be excluded subject to the rules in section VII.5.
5. Part deliveries shall be allowed and shall be invoiced when theym are made.
6. The risk shall always pass to the customer if the goods have left our premises.
7. We will not perform installation and commissioning work, which shall be included in the scope of delivery only if there is an explicitm special written agreement.
IV. Retention of title
1. The goods delivered shall remain our property until payment in full of all claims relating to the business connection. Resale of the retention of title to third parties shall require our agreement. In the event of resale, the customer shall hereby cede its claims on us and shall undertake to provide us with all details required to recover such claims.
2. Processing or transformation of the goods by the customer shall always be effected at our order, as manufacturer, without creating any obligation on our part. If our (joint) ownership is extinguished as a result of combination, it shall be agreed herewith that the customer’s (joint) ownership of the common item shall pass to us on a pro-rata value basis (invoice value).
3. The customer may not pledge secured goods, nor use them as security. The customer shall notify us immediately if the secured goods are seized by third parties. The customer shall be obliged to treat the secured goods with care, insure them against theft, damage, destruction and accidental loss (in particular fire and water), and to provide evidence of this on request.
4. Where the value of all our security rights exceeds the amount of all secured claims by at least 20%, we shall release the corresponding part of the secured rights. We shall also be entitled to enforce all our rights arising under the aforementioned retention of title, including the recovery of ceded claims, as soon as the customer is in default of payment.
V. Prices and payment
1. Our prices are ex works (plus, when applicable, value-added tax). Prices exclude delivery, unloading, positioning or installation. Standard packing is included in our prices. Other packing will be quoted separately.
2. For orders, the performance of which exceeds a period of three months, we retain the right to adjust the confirmed prices.
3. Amendments made after our order confirmation at the request of the customer shall be invoiced separately.
4. We reserve the right to call for immediate prepayment of the agreed selling price for first orders from new customers, as well as if the buyer is not sufficiently creditworthy, or we learn of this subsequently. If such a claim is not met by the buyer immediately, we can withdraw from the purchase contract without giving rise to any liability for damages.
5. Payment shall be made exclusively to us or to the bank account specified in our invoice. Payment instructions, cheques and in particular bills of exchange shall be accepted only by special agreement or on account of payment, not as performance of payment. Recovery costs, and bill of exchange and discount charges shall be borne by the buyer. Renegotiation and prolongations shall not be deemed to be performance. The buyer’s payment obligation
shall not be affected by a request for reduction, by the arrears of other parts of the sales contract or by counterclaims. All withholding and set-off rights against our payment claim shall be excluded.
6. In the event of non-performance by the customer, we shall be entitled to demand flat-rate damages of 20% of the contractual consideration. Non-traders shall be free to provide evidence of lesser damage. The right to claim higher damages which have actually occurred shall be unaffected hereby.
VI Transportation
1.Goods are freighted under buyer’s responsibility. Delivery is free on truck, unloading not included.
2. Goods are freighted under insurance coverage. It is clients’ task to check goods for damages upon delivery. Complains not related to transportation must be sent within 24 hours from godos reception.
3. Besides above mentioned cases, goods received with signature on shipping bulletin are accepted henceforth.
VII. Warranty and damage
1. The customer shall be responsible for the accuracy and completeness of the specifications, dimensions and other details supplied to us for performance of the order. Errors in this respect on the part of the customer shall not justify deficiencies in our performance.
2. Obvious deficiencies in our performance and/or work shall be notified and specified in writing without undue delay following performance, and non-obvious deficiencies without undue delay they are identified. We cannot take account of verbal and/or later notifications of deficiencies.
3. Deficiencies shall not include minor deviations from the agreed quality, minor impairments to usability, normal wear-and-tear or damage occurring after the transfer of risk as a result of improper or negligent handling, excessive demands, unsuitable equipment, defective construction work, an unsuitable site or as a result of
external influences which are not assumed under the contract. If the customer or third parties undertake inappropriate modifications or maintenance work, claims for deficiencies shall be excluded in respect of these and of consequences arising therefrom.
4. We shall rectify justifiably asserted deficiencies in our performance free of charge by reworking or by making a exworks, replacement delivery, at our choice. The customer shall be responsible for providing evidence of the deficiency. We can refuse to rectify deficiencies if the cost of so doing is disproportionate. If the warranty to be performed by us is abortive within an additional period reasonably set by the customer, the customer can – without prejudice to any claim for damages under point 5- demand a reasonable reduction in the consideration or withdraw from the contract.
5. Claims for damages by the customer, for whatever legal reason, in particular due to infringement of obligations under the contractual obligation and from impermissible actions, shall be excluded. This shall not apply in cases of intent or gross negligence, due to injury to life, body or health, for liability under the Product Liability Act, for a warranty entered into by us, for damage resulting from a culpable infringement of major contractual obligations or in other cases of legally binding liability. However, liability for infringement of major contractual obligations shall be limited to replacement of the typical, foreseeable damage, except in the case of intent or gross negligence or if there is a liability due to injury to life, body or health. The rules under this point shall not entail any change to the burden of proof to the detriment of the customer.
6. Claims for material deficiencies shall expire by limitation in twelve months from delivery date. This shall not apply if a longer period is laid down by law (building works and material for building works, deficiencies in building works, recourse in the case of purchases of consumer goods).
7. More extensive or other warranty or damages claims by the customer against us and our agents due to a material defect shall be excluded.
VIII. Legal venue, place of performance
1. The legal venue for all legal disputes arising from the comercial relation ships with customers, a legal entity under public law or a separate asset under public law, as well as the place of performance for all obligations arising from the contractual relationship shall be Donostia-San Sebastian, Spain. This shall also be the case if the customer has no general legal venue in the Kingdom of Spain.
IX. Concluding provisions
1. The law of the Kingdom of Spain shall apply for rulings relating to all legal relationships with the customer. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
2. If part of the contract or of these General Terms and Conditions of Business becomes invalid or impracticable, the validity of the contract or of these General Terms and Conditions of Business shall not otherwise be affected.