Terms and conditions
In the present general Terms and Conditions, the following terms are used in the sense given below:
- “Buyer” means the organisation or person who buys Goods
- “Goods” means the articles and/or products and any part of them to be supplied to the Buyer by the Seller and includes their packaging;
- “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
- “Seller” means BLAUNAVAL, S,L
- “Specification” means that specification (if any) included in Seller’s written quotation or any other written specification supplied by Seller
- These Terms and Conditions shall apply to sales of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Seller in writing. In this event, the agreed specific terms shall prevail over these general Terms and Conditions, which will apply subsidiarily.
- Any variation to these Terms and Conditions (including any specific terms agreed) shall be inapplicable unless agreed in writing by the Seller.
3. Seller’s quotations and offers
- All quotations shall be free of obligation unless the offer contains an acceptance term. In that case they shall be valid for a period of 30 days. Seller shall only be bound by the offers if the acceptance thereof is confirmed in writing by the opposite party within 30 days, unless indicated otherwise.
- If the acceptance deviates (on secondary items) from the offer given, Seller shall not be bound by it.
- Unless expressly agreed in writing with Seller, Buyer shall not be entitled to request the cancellation of an order or request any compensation in the event of a delay in the delivery of the Goods. In case of partial supply of an order, Buyer cannot refuse to pay the price of the Goods already delivered.
4. Price and Payment
- The price shall be the standard BLAUNAVAL, S,L Supply Retail Price less agreed discount, unless otherwise agreed in writing between the parties. Seller will update BLAUNAVAL, S,L Supply Retail Price periodically without prior notice to Buyer. This will not imply any price change in respect of quotations already accepted by Buyer.
- The price is exclusive of IVA or any other applicable taxes, duties, fees or costs, such as transport.
- Credit terms may be offered subject to satisfactory credit vetting of the Buyer by the Seller. The offer of credit will be at the sole discretion of the Seller.
- Where credit is offered payment of the price and IVA and any other applicable costs shall be due within 30 calendar days of the date of the invoice supplied by the Seller, unless otherwise agreed in writing. In cases where credit is not offered payment will be required before release of Goods by the Seller.
- The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 2% per annum above the Spanish legal interest / the applicable delay interest for commercial transactions (Law 3/2004)
- If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
- require payment in advance of delivery in relation to any Goods not previously delivered;
- refuse to make delivery of any undelivered Goods without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;
Any description given or applied to the Goods is given by way of identification. Buyer shall check the suitability of the Goods for the intended purpose.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is representative in nature and the bulk of the order may differ slightly as a result of the manufacturing process.
- Domestic delivery of the Goods shall take place at the address specified by the Buyer on or as close as possible to the date required by the Buyer, unless otherwise agreed in writing.
- In the case of exports, EU deliveries, special orders or emergencies, the corresponding incoterm shall be specified, which will be EXW if not agreed otherwise.
- The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. The signature in the space reserved for it in the transport bills will imply conformity with the delivery made.
- Notwithstanding the above, If Seller is unable to deliver the Goods because of actions or circumstances under the control of the Buyer, then Seller shall be entitled to place the Goods in storage until delivery is effected and the Buyer shall be liable for any expense associated with such storage.
- Any damages, shortages, over deliveries and duplicated orders should be reported to the Seller within 7 days of signed receipt to enable replacement or refund.
Risk in the Goods shall pass to the Buyer upon receipt of the Goods. Where the Buyer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first.
Title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
10. Return of unused Goods
- All Goods are sold on a firm sale basis, i.e. the Seller will not take back any Goods not required or sold by the Buyer, unless otherwise agreed, in which case the following terms apply.
- Any returns must be authorised by a representative of the Seller before any credit will be given.
- Where the Seller agrees to accept the return of Goods that are not damaged the Buyer will be responsible for the cost of carriage and will ensure that they are carefully packaged to avoid any damage in transit. The Seller will not be obliged to accept any Goods that are damaged in any way. The Seller will only accept returns that are stock items
- Some Goods will be subject to a restocking fee, this will be communicated to the Buyer before any Goods are returned.
- The Seller cannot accept the return of Goods purchased specifically on behalf of the Buyer, i.e. special orders.
- Credit of amounts due or paid in will only be given for Goods that are in saleable condition.
The warranty of the Goods shall be the warranty established by the producer or manufacturer of each brand indicated in the file of each Good.
12. Limitation of liability
- To the maximum extent permitted by applicable Law, Seller shall not be liable for the malfunction, defects or failure of the Goods sold to Buyer as long Seller is not its manufacturer. Notwithstanding, Seller shall (i) inform the Buyer, within a reasonable time, of the identity of the producer/manufacturer or of the person/entity who supplied him with the product, (ii) process the Return Merchandising Approval (RMA) request with the manufacturer, the buyer having to send the Goods to the Seller/manufacturer as indicated by the Seller, and (iii) make its best efforts to facilitate dialogue between the manufacturer and the Buyer .
- Buyer shall examine the Goods in the following 30 calendar days after delivery. After such term, Goods will be considered as compliant by Buyer. Otherwise BUYER shall then immediately notify Seller that it rejects all or any part of the damaged Goods in that delivery and fills a Return Merchandising Approval (RMA) request.
- Provided RMA notification is made within the above 30 day period or during the warranty period, if it is shown to Seller’s or manufacturer’s reasonable satisfaction that Goods fail materially to comply with the Warranty, Seller and/or manufacturer shall be given a reasonable opportunity to correct such failure. If the failure is not corrected, Seller – with the prior consent of manufacturer – will at Buyer’s option either (i) refund the purchase price (or, if the Goods have depreciated for reasons other than Seller’s default or been used or put into process, a reasonable part of the purchase price), or (ii) replace part or the whole of the Goods (if reasonably practicable) within a reasonable time, free of charge. Such correction, refund or replacement shall, subject to clause XII.6 be Seller’s sole liability in relation to any such failure and shall in no circumstances exceed the invoice value of the Goods in question.
- Goods under a RMA shall as far as possible be preserved for Seller’s or manufacturer inspection, and shall be returned to Seller (at Seller’s cost) if Seller reasonably so requests.
- Seller nor manufacturer, as the case may be, shall not be liable in any way whatsoever for:
- In case Buyer does not comply strictly with the instructions or Specifications of Seller and/or manufacturer relating to the Goods
- In case of misuse or non suitability of the Goods for the intented purpose of the Buyer;
- the incompatibility of any Goods supplied by Seller with the products of other manufacturers or suppliers;
- inadequate or incorrect surface preparation or coating application work carried out by, or the faulty equipment or product of Buyer, or any third party;
- any representations, advice or assistance given or omitted to be given in connection with Goods, services, the Specification or the contract, other than services specifically charged for by Seller. In this latter case Seller shall provide the services with reasonable care and skill and liability for failure shall be limited to a refund of the fee charged for those services;
- the supervision or quality control (or lack thereof) by or on behalf of any third party.
- Seller does not exclude or restrict any liability which cannot be excluded or restricted as between Buyer and Seller, including in respect of a Buyer who deals as a consumer, as a matter of law under any applicable legislation. (b) Buyer shall promptly notify Seller of any claim against Buyer under any consumer protection legislation granting rights to consumers which Seller cannot by law exclude or restrict. Seller then shall only be liable to Buyer in the event Goods were defective (within the meaning of the applicable legislation) at the time of delivery by Seller and shall not be liable to the extent that any liability arises from any act or omission of Buyer.
- Without prejudice to any other limitation of Seller’s liability (whether effective or not):
- a) in no circumstances whatsoever (including any fault or default of Seller) shall Seller be liable for any loss of profits, use, contract, goodwill, business, anticipated savings;
- b) except as provided under clause XII.6, Seller’s total aggregate liability under any proceedings or law in connection with Goods, or the contract is limited to the cost of Goods sold.
- The Warranty and Buyer’s remedies under clause XII are in substitution for any other warranties, obligations, representations, liabilities, terms or conditions in connection with Goods and/or services which are hereby expressly excluded.
- Unless specifically stated otherwise in these Conditions, Buyer’s sole remedy shall be in damages.
- The limitation of liability stated in this clause shall not apply to liability arising from physical damage to property, personal injury or death, as a result of the gross negligence or willful misconduct of Seller, its employees or agents.
13. Third party claims
Buyer shall indemnify Seller against any liability incurred by Seller (i) from incorporating property of Buyer in Products or complying with any Specification or other instruction of Buyer relating to Goods; and (ii) arising from the use of or dealings in Goods by or on behalf of Buyer, except as provided in clause XII.6 or if arising from Seller’s willful default.
- Either party may terminate this contract immediately for cause upon written notice to the other party: (i) if the other party materially breaches this contract, provided that the other party is given written notice of its breach and fifteen (15) days’ time to cure the breach; (ii) of repeated material breaches of this contract by the other party; or (iii) if a party becomes insolvent or under a bankruptcy, receivership, or similar proceeding.
- In particular, Seller may (without prejudice to its other rights or remedies) terminate or suspend Seller’s performance of the whole or any outstanding part of the contract in the relevant following circumstances. Seller may also suspend deliveries or supply of complementary services while investigating any claim relating to prior shipments (under any contract) of Goods. The relevant circumstances are:
- Buyer failing to take delivery of or to pay for Goods and/or services (if any) by the due date, or breaches any other term of the contract; or
- where the contract is for a fixed price, there has been a substantial increase in Seller’s costs of manufacture and supply of Goods and/or services between the date of contract and date of dispatch arising from circumstances beyond Seller’s reasonable control (as stated in clause XVII below) and Seller and Buyer have failed within 30 days of Seller notifying Buyer of such increase, to reach agreement on a reasonable adjustment in the price for remaining deliveries to recognise such increase.
15. Intellectual property rights
- All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
- Buyer shall not use any trademarks or tradenames applied to or used by Seller in relation to the Goods in any manner not approved by Seller.
16. Force majeure
The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract.
17. Relationship of parties
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
18. Assignment and sub-contracting
The contract between the buyer and seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the buyer, without the prior written consent of the seller.
The failure by either party to enforce at any time or for any period any one or more of the terms and conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this agreement
If any term or provision of these terms and conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these terms and conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
Any notification of any kind that must be made in relation to this contract must be delivered by hand or sent to the seller’s or buyer’s address and delivered by reliable means including: facsimile – subject to confirmation of transmission – burofax, email – with acknowledgment of receipt issued by the recipient or automatically by the system- or sent by first class or express post, five clear working days after the date of posting to buyer’s, or seller’s address.
22. Personal data
In accordance with Law 15/1999, regarding personal data protection, Seller informs Buyer that its personal data will be incorporated into Seller’s database. The purpose of this is to manage Seller customer relations. Likewise, Seller informs Buyer that its data will be used for marketing and publicity purposes to inform you about products and services which may be of Buyer interest, and which are related to services provided by Seller or any of the companies within the group. Therefore, unless otherwise stated in writing to the address below, Buyer consents to provide its personal details for the before referred purposes. Thus, Buyer has the right at any time to access, rectify or cancel information about itself which is included in Seller’s database by contacting the person in charge of the Files at the following address: email@example.com
The Spanish version of these general terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.
24. Changes to the terms and conditions
The most recently filed version shall always apply, or, as the case may be, the version valid at the time the contract was concluded which buyer might access at the seller’s web page. In the case does not accept the new terms, he will be entitled to terminate this contract.
25. Governing law and jurisdiction
This agreement shall be governed by and construed in accordance with the laws of Spain and the parties hereby submit to the exclusive jurisdiction of the courts of Palma de Mallorca. Seller may nevertheless bring claims in any other court of competent jurisdiction .
26. Validity of the present general terms and conditions
The Parties expressly ratify the validity of the all the clauses stated in the present general Terms and Conditions.