1. Terms applicable
In these General Conditions of Sale, the following terms shall have the following meanings:
“Vendor”: ENVIRO SOLUTIONS or any firm belonging to ENVIRO SOLUTIONS that appears in the offer or other document to which these Conditions apply.
“Buyer”: Any natural or juridical person with whom or which the Vendor contracts or to whom it sells “The Equipment”.
“Equipment”: Means equipment, or any part thereof, that is the object of the contract, as described in these General Conditions, and, where applicable, in the confirmation of the order fulfilled by the Vendor.
“Services”: refers to the purchase order received by ENVIRO SOLUTIONS S.L.
“Delivery”: complete performance of the supply and making available of the products in conditions. FCA INCOTERMS 2010.
If these terms are included in an offer or in an approval, there are contingent on the consent of the Purchase to these terms and conditions and final confirmation by the Vendor. The Vendor rejects any terms in any way additional to or different from any form or document of the Buyer. Any modifications of the said conditions of sale must be agreed upon by both parties in writing and shall not affect any contracts that have already been signed, nor any future purchases.
Assignment or Subrogation
The Vendor shall be authorized to subcontract the full or partial performance of the Products to third parties, and may transfer all of part of its rights and obligations, including appointing a third party to replace it in the fulfillment of its obligations.
The Buyer is not authorized to transfer the agreement or rights and obligations arising therefrom to any third party/ies without the Vendor’s written consent.
These terms, together with any other comment, order or acknowledgment issued or signed by ENVIRO SOLUTIONS S.L., encompass the complete and exclusive statement of the agreement between groups (the “agreement”) and replace any term found in the Buyer’s documents, except those separately signed by ENVIRO SOLUTIONS S.L.,
No part of the agreement may be modified except in the event of a modification made in writing and signed by ENVIRO SOLUTIONS S.L. and by the Buyer. No business practice or customs or difficulty to carry out any term of these conditions may be used to modify the Agreement. If any of these terms prove to be impossible to fulfill, that term shall be limited exclusively up to the point at which it can be fulfilled, and all remaining terms shall remain fully valid and effective.
a. The delivery of the equipment must be carried out in terms of the material as scheduled in the Vendor Documentation.
b. The terms of delivery that shall be binding on the parties shall be those stated in the relevant document or delivery note of the vendor in which they shall be specified, such as the point of delivery, deadline, costs and the rest of the necessary conditions).
c. Unless the Vendor Documentation states otherwise, the terms of Delivery shall be FCA INCOTERMS 2010.
d. The Vendor shall endeavor to carry out the delivery of the Equipment within the deadline set, which shall be on an estimated basis and not binding, and under no circumstances shall the Vendor guarantee the fulfillment thereof.
e. Unless attributable to the Vendor due to gross negligence of bad faith, the expiry of the delivery deadline shall not entitle the Buyer to claim any damages or compensation whatsoever, reject the supply of the Products, or suspend the fulfillment of any obligation, especially that of payment, or serve notice of termination.
f. The delivery period shall begin to run from the date of approval of the transaction by the Vendor and the fulfillment by the Buyer of all of its obligations. Delivery times shall be understood to be extended whenever causes occur that halt or hinder the operations, and/or circumstances attributable to the Buyer and/or to Third Parties, including without limitation, delay in the date of payment or non-fulfillment of other obligations, in which case the delivery time shall be understood to have been extended by the same time during which the causes of the delay persist.
3. Owner of the materials
All of the apparatus, equipment, designs (including drawings, plans and specifications), approximations, compositions, prices, notes, digital information and other documents or information prepared or disclosed by the Vendor, and all related intellectual property rights, shall remain the sole property of the Vendor, and are not transferred under this contract.
The Vendor grants the Buyer an exclusive and non-transferable authorization to use any kind of material exclusively for the use of the Buyer or to facilitate the servicing of the Equipment. The Buyer must not disclose any material to any third parties without the Vendor’s prior written consent. Buyer expressly undertakes all of the risks of patent infringement arising from its use of sale of the production, individually or in combination with other materials or in any process.
Catalogs and documents.
The data contained in the catalogs and technical documents shall be binding only if they are explicitly stipulated as such therein. All documents supplied by the Vendor to the Buyer must be considered as the former’s exclusive property, and must be considered confidential and cannot be transferred or assigned, in any manner or by any title to any third party, nor copied or used without the Vendor’s prior consent. If the order is not carried out, all of the catalogs and other documents supplied must be returned immediately to the Vendor.
Reservation of title.
The Vendor shall continue to be the owner of all goods supplied until the full receipt of all payments agreed.
Therefore, the Buyer authorizes the Vendor to enter its reservation of ownership in public registers or files and shall be bound to undersign any signature as required for that purpose.
The Vendor may exercise this reservation of title against third parties and always in the event of bankruptcy of the Buyer’s company, recovering the goods in accordance with Spanish law and regulations.
The Vendor shall not make any change in respect of the work or services described in the Vendor Documentation unless the Buyer and Vendor agree in writing with the details of the change and the new resulting price, schedule or other contractual modification. This includes any change necessitated by a change in the relevant law that occurs subsequent to the effective date of any contract, including these terms.
All prices must be considered net in Euros, with no deduction of any kind, unless otherwise agreed. Prices may be modified, the Buyer having the power to withdraw from the contract if it does not interest the Buyer within the 7 days following notification of new prices.
Prices are net of taxes (VAT), levies or other charges, both of a general and special nature, which shall be borne by the Buyer, unless otherwise agreed in writing, taking into account the INCOTERMS which may apply and/or the conditions of delivery of the goods. By accepting these conditions, the Buyer authorizes the vendor to submit receipts on the account of the Buyer, individually or periodically within the framework of contracts accepted, in compliance with SEPA regulations, without needing the signing of other separate authorizations.
Unless the Vendor Documentation states otherwise, the loading, storage, insurance and all taxes, duties or other government charges related to the Equipment delivered or Services rendered, must be paid by the Buyer. If it should prove necessary that the Vendor pay any of the charges, the Purchase shall reimburse the Vendor immediately. Form of payment
Unless otherwise agreed in writing, the payment of all orders fulfilled shall be made within 30 days or be an irrevocable and confirmed documentary letter of credit, all of which to the satisfaction and at the discretion of the Vendor.
No deduction, set-off or withholding of payments by the Purchase shall be permitted. If there is a bond, the text thereof must be consistent with the model which the Vendor will supply for that purpose. The Vendor (which in this respect is understood to mean all of the companies that form part of the same group as the Vendor) has the right to offset any sum owed to it by the Buyer (which in this respect is also understood to mean all of the companies that form part of the same group as the Buyer), against any sum payable to the Buyer.
All invoices issued by the Vendor shall be considered as approved and accepted unless the Buyer expresses its disagreement in writing to the Vendor, within the seven (7) days following the receipt thereof.
In the case of partial deliveries, the Vendor is authorized to bill and demand payment for each partial delivery, as well as to issue partial invoices, and the Buyer shall be bound to pay said invoices in accordance with these Conditions.
The date of payment shall be the day on which the Vendor actually receives the payment.
If the amount owed has not been paid on the payment date set, the Buyer shall pay the Vendor the corresponding monthly interest in accordance with the provisions of Directive 2000/35/CE of the European Parliament and Council, dated 29 June 2000, whereby measures are established to combat late payment in business transactions, from the date set for the payment until it is paid completely and in full, and all of the foregoing without prejudice of any other right that the Vendor may hold, including the right to recover any legal and/or out of court costs it may incur in the process of recovering the amounts owed.
The payment deadline is an essential condition, so if the Buyer fails to meet its payment obligations, does not pay on time or in full, the Vendor shall be authorized to suspend any undertaking or obligation arising from the Agreement until such time as the Buyer meets its obligations, or terminate the Agreement, all of the foregoing without prejudice of the Vendor’s right to claim damages for any harm and loss incurred due to the late performance or non-performance of the Agreement.
The Vendor guarantees all of the Products supplied for a period of 18 months from the notification that the consignment is available for shipping or 12 from the delivery to the first transportation contractor to the final Buyer, whichever occurs first, and provided the claim has been made in writing to the Vendor within the 48 hours after having been detected or should have been detected [sic] and always within the time periods and deadlines set forth above.
Likewise, the Buyer will have to show that any faults or defects have arisen exclusively as a direct consequence of errors or lack of due diligence on the part of the Vendor.
The guarantee stated herein consists solely and exclusively in the repair or replacement (at the Vendor’s selection) within a reasonable time, of the Products that have been acknowledged to be defective, due either to defects in materials or in production. It is understood that all repairs shall be made in the Vendor’s factory, and the Buyer shall bear the cost of all disassembly, packaging, loading, transport, customs, duties, etc, incurred by the shipping of the defective material to the Vendor’s factory. The
Buyer undertakes to accept the replacement or repaired Products, and in no case shall the Vendor be liable to the Buyer for any kind of loss or harm of any kind as a consequence of the original supply or delays in the deliveries of the products replaced or repaired.
In no case shall the Vendor be liable to the Buyer or third parties for losses or harm whether direct or indirect or consequential arising from or connected to the object of this contract, including accidents involving persons, damage to goods or assets other than those which are the object of the contract or loss of profits. Any undertaking and obligations of the Buyer resulting from the guarantees existing between him and his customers that exceed those set forth above and that have not been expressly accepted by the Vendor in writing, shall be borne exclusively by the Buyer.
The repair or replacement of a defective element does not alter the start date of the guarantee period of the Products supplied. Any Products repaired or replaced shall be guaranteed as and from the date they are repaired or replaced equal to the term that is deducted from the defective or replaced product until the terms stipulated in these Conditions expire.
As an exception to the guarantee described above, when the Products delivered have not been manufactured by the Vendor, the Vendor shall grant the Buyer the same guarantees that the Vendor has been given by the relevant manufacturer, except the guarantee that their use does not infringe any third-party intellectual property right or patent, which may not be considered as granted by the Vendor.
This guarantee does not cover any damage, imperfections, etc. that are the consequence of:
The repair and replacement of parts as a result of normal wear and tear.
Repairs, modifications, or alterations to the Products made by personnel that are not part of the Vendor’s organization.
Any improper use, replacement, repair, modification, conservation or alteration, or lack of maintenance in accordance with the maintenance instructions specified by the Vendor.
Any lack of greasing, use or cleaning with recommended products and with the periodicity indicated by the Vendor.
The Vendor shall provide the Buyer with the necessary information and documentation, including the operation manual, to carry out its tasks.
Any incorrect or negligent handling, misuse, defective assembly, variation in the quality of the electrical power supply, (voltage, frequency, etc.), modifications made without the Vendor’s approval, subsequent installations carried out or modifications made without following the product’s technical instructions and in general any cause that is not attributable to the Vendor.
7. Indemnity for damages
The Vendor must indemnify, defend and hold harmless the Buyer against any claim or liability incurred by the Buyer in the event of harm or loss to third parties due to personal injuries, death or damage to tangible property, solely to the extent to which these are caused by the Vendor’s negligence.
The Vendor must have exclusive authority to direct the defense and resolve any indemnified claim. The Vendor’s indemnity is contingent upon the Buyer’s punctuality (a) within the Guarantee Period, notifying the Vendor of any claim, and (b) providing reasonable cooperation in the defense of any claim. The foregoing is without prejudice of the benefit and risk of the object of the sale or supplies shall pass to the Buyer once it/they are in its possession, and the Buyer shall be responsible for obtaining insurance cover against any kind of risk.
Claims under the guarantee and responsibility of the customer are covered exhaustively by these conditions. The Vendor’s prices are set and negotiated on the basis that its maximum legal responsibility is limited. Customers have their own means of limiting risk and duplicating them would be superfluous. Unless otherwise agreed, the Vendor’s responsibility shall never exceed the value of the goods affected at the moment of sale. The Vendor is released from any and all responsibility over and above that maximum, even if it has been caused by its own negligence or non-fulfillment of obligations, save in the event of fraud on the part of the Vendor. In no case shall the Buyer be authorized to file contractual or extra-contractual claims for consequential damages, including but not limited to: loss of production, loss of use, of profits or any other direct, indirect or consequential damages to the Buyer.
In the event that the Buyer files for bankruptcy, suspension of payments, insolvency, administration or similar proceeding; winding-up, liquidation or transfer, of all or part of its assets, the Vendor may proceed to terminate the agreements by means of written notice, without prejudice of the other rights that the Vendor holds, such as claiming damages for the harm and loss incurred, and the payment by the Buyer to the Vendor of all outstanding amounts and any other pending that are deemed to have accrued and be payable forthwith.
9. Export restrictions
In the event that any of the Products supplied by the Vendor is subject to export control regulations, the Buyer shall refrain from exporting said Products directly or indirectly without the Vendor’s prior written authorization.
In this respect, the Buyer undertakes and binds itself to notify the Vendor of any sale it may make to any company situated in [LIST OF COUNTRIES] or that it may reasonably consider that its Customer may bring the Product into such markets.
10. Force majeure
The Vendor shall not be responsible for the defective performance or non-performance of any agreement, due to force majeure, in the broadest sense thereof.
Force majeure shall be understood to mean any circumstances beyond the Vendors control that prevents, temporarily or permanently, the execution of all or any of the Vendor’s obligations to the Buyer, regardless of whether these circumstances were or were not foreseen at the time of the conclusion of an order, agreement, contract, etc .., such as, but not limited to: governmental action, rejection, revocation or cancellation of permits, lockout, forced closure of all or part of the business, war or threat of war, fire, transportation problems, accidents, labor disturbances, lack of personnel, foreclosures, temporary or permanent non-delivery of samples, no provision of services by third parties regardless of cause, defects and/or damage to material, machinery, systems and/or software and hardware, absence or lack of material with which the products are manufactured.
If the Vendor is unable to make the delivery as a consequence of force majeure, it may, at its sole discretion, either extend the delivery period for the duration of the force majeure or terminate the Agreement, and claim payment for any partial delivery made, without having to pay any damages or compensation to the Buyer.
Either party may terminate the services specified in the Vendor Documentation by providing reasonable advance notice to avoid costs incurred by another group. If the Buyer cancels or suspends its order for any reason unrelated to breach by the Vendor, the Buyer must immediately pay the Vendor for the work carried out prior to the cancellation or suspension and any other direct cost or obligation incurred by the Vendor as a result of the said cancellation or suspension.
Depending on the moment at which the Vendor unilaterally cancels, the following approximate percentages are hereby agreed of the minimum costs to be borne by the canceling party: i) 50% of the price during the production phase, ii) 70% of the price during transit and iii) 100% of the price with the material in the process of delivery, even if not received by the Buyer.
12. Breach by the buyer
In the event of breach of any of the Buyer’s obligations, as well as in the event of an inter-creditor agreement, liquidation or winding-up of the company, the Vendor shall have the right to the serve notice of the total or partial rescission of the contract or the suspension of its performance in whole or in part, and may exercise the retention of title apart from other possible legal actions, without the need for a further notice, notification or court intervention.
To terminate the contract, the Vendor shall serve notice in a verifiable manner (by Burofax or a Notarized Act); the Vendor shall not be liable for any harm or loss, without prejudice of other actions. As soon as any of the afore-mentioned circumstances occur, all claims that the Vendor may have against the Buyer shall become payable forthwith.
13. Confidentiality and data protection
In accordance with the provisions of Organic Law 15/1999 of 13 December on the Protection of Personal Data, all data of a personal nature supplied by the Buyer shall form part of a file of the Vendor’s customers, the purpose of which is the maintenance of contractual relationship, the control and management of sales and related collections of payment.
The Vendor shall treat said data with the utmost confidentiality, and undertakes not to use them for any purpose other than that for which they have been gathered, and to store them with the appropriate measures to ensure their security and prevent their alteration, loss or unauthorized treatment or access. The Vendor undertakes not to disclose any professional secret in respect of the said personal data, including once the contractual relationship has ended. The Buyer authorizes the Vendor to store its date for a period of five years once the business transaction has been completed and performed. The Buyer can exercise its rights of access, rectification, cancellation and opposition by writing to Data Protection Officer of ENVIRO SOLUTIONS, S.L. whose registered address in Spain is: Indústria, 330 – 08026 Barcelona.
These conditions are understood to be severable, and if any of them proves to be invalid for any reason, the rest shall remain valid and fully effective. If these conditions refer to other documents as binding, their content shall be deemed to form part of these conditions with the same validity and binding force upon the parties.
In the event of discrepancy between the texts in Spanish and in any other language, the text in Spanish shall take precedence.
16. Forum and arbitration
The Parties agree that in the event of dispute or different interpretations, either in these general conditions or with respect to their operations, shall be submitted in the first instance to arbitration by the International Chamber of Commerce and its rules shall govern said arbitration (or such body as may replace it). The relevant rule shall be that of Spanish law. The Parties waive recourse to any other forum or jurisdiction to which they may have the right.