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These general contract conditions (hereinafter the "General Contract Conditions") set forth the conditions applicable to any supply or delivery of Products by THE COMPANY to any Customer by virtue of Contract Orders accepted in writing and as these terms are defined below.
Installation of the product is excluded from these General Contract Conditions.
For the purposes of these General Contract Conditions, the following terms will have the meaning specified below, notwithstanding any definitions which might also be included in the said Conditions:
"THE COMPANY": the company BENITO URBAN, SLU (and companies in the Benito group), with place of business at C/Lleida 10, 08500 Vic
"Customer": the company or public body ordering Products from THE COMPANY;
"General Contract Conditions": the general conditions of sale posted on the Website, which are applicable to Contract Orders placed by all Customers, in accordance with the definitions set forth in the said conditions.
"Website": the website www.benito.com
"Party": refers to THE COMPANY or the Customer, while "Parties" in plural refers to both;
"Contract Order": list of Contract Services requested by the Customer from THE COMPANY, which must respond in terms of the form and content specified in clause 3 of these General Contract Conditions;
"Price/s": those announced periodically by THE COMPANY and in force at the time when the Order is placed but, in any case, when a Confirmed Order exists;
"Products": any product contained in the Published Catalogue which, according to the specifications thereof, can be ordered by the Customer, notwithstanding the right reserved by THE COMPANY to discontinue any of the said Products at any time, without any right of compensation arising for the Customer;
"Contract Services": will be the assembly or installation services for the Products.
3. Orders and their acceptance
3.1. General Clause: THE COMPANY will supply the Products to the Customer in accordance with the terms and conditions set forth in these General Contract Conditions.
3.2. Content of Contract Orders: The Customer places a Contract Order in the form of a document which it must send to THE COMPANY by fax or e-mail and containing the following information at least:
(i) Customer’s identifying and contact details;
(ii) The products required;
(iii) Contractual date;
(iv) Contractual location;
(v) Delivery conditions, which must be agreed to by THE COMPANY
(vi) Conditions of payment, which must be agreed to by THE COMPANY
For the purposes of these General Contract Conditions a Contract Order will only be considered as such if it contains the items listed above. Any request which is not a Contract Order may simply be ignored by THE COMPANY.
3.3. Acceptance of Contract Orders: upon receiving a Contract Order, THE COMPANY has a maximum of FIFTEEN (15) WORKING DAYS from reception thereof in which to refuse it. Should THE COMPANY not issue its acceptance of a Contract Order, it must be understood NOT to have been accepted.
The Customer further agrees that in the event that THE COMPANY’s credit and surety institution (bank) does not approve the Accepted Contract Order within ONE (1) MONTH of its acceptance, THE COMPANY reserves the right to cancel the Accepted Order in question; in such cases the Customer waives any right to make a claim in respect of such cancellation.
4. Price and form of payment
The Customer will pay the Price for the Contract Services in accordance with the conditions and form of payment agreed upon by the Parties either for each Accepted Contract Order or on a regular basis, and in any case no more than THIRTY (30) CALENDAR DAYS after the date of issue of the invoice in accordance with Clause 6.1 below.
In the event of any request to change an Accepted Contract Order, THE COMPANY reserves the right to alter the prices applicable in accordance with the changes requested by the Customer, all in accordance with these General Contract Conditions.
THE COMPANY will make deliveries on the terms agreed in each Order, and under the following conditions:
1) ORDERS: orders must be placed in writing, either directly or by fax, and must be signed by both parties, which will automatically signify their acceptance and approval. The Company reserves the right to cancel them where circumstances so advise, after first informing the Customer with adequate notice.
The Customer must explicitly specify the products and quantities they want on the order form.
2) PRICES: sale prices will be those set forth in the price list in force at any given time, and are taken not to include VAT or carriage and to be for sales on the mainland of the Iberian peninsula.
3) PAYMENT: all sales are made for settlement in cash of the invoice total, and may not be paid for in part or deduct any kind of discount or compensation therefrom. Payment periods, calculation of arrears interest, costs and other matters related to demanding or administering payment are explicitly subject to the stipulations of Law 3/2004 establishing means of combating late payment in business transactions.
4) Any delay in payment of the agreed price after its due date shall lead to the charging of arrears interest on the said amount, in accordance with the stipulations of current legislation at the time. The costs and administrative expenses of demanding payment will also be passed on to the Customer.
5) CARRIAGE: shipment is always at the Customer’s expense and risk.
6) DELIVERY TIME: material will be delivered according to the availability of each product at any given time, and the delivery time will be pointed out when the order is accepted.
7) RETURNS: the Company will not accept any complaints or returned goods once four days have elapsed following delivery thereof to the Customer or their appointee.
8) RESERVE OF OWNERSHIP: the Company reserves ownership of the merchandise until the purchaser has paid for it in full.
9) DESTINATION OF THE MERCHANDISE: the Company takes no responsibility for the destination, location, installation or use made of its products; this is the sole responsibility of the Customer. In the event that a product is required for some special use the Customer must request it from the Company explicitly and in writing.
10) INTELLECTUAL AND INDUSTRIAL PROPERTY: the Products marketed, and all items included in the catalogues, advertising and promotional material, as well as the Company Website, are protected by copyright, trademarks or patents.
All these items are the sole property of the Company, and their total or partial reproduction is not permitted in any form.
The Customer may not alter the product or its marking and identification without explicit written permission by the Company. Limitation of rights: use by the Customer or by THE COMPANY of the other party’s industrial property rights shall not imply or lead to any transfer of ownership thereof or grant any rights of ownership thereto.
The Customer undertakes to safeguard THE COMPANY’s trademarks, and to inform it of any circumstances which might attack or harm them.
11) DATA PROTECTION: the data supplied by Customers by whatever means will be processed in accordance with the Spanish data protection act, Organic Law 15/1999 of 13th December, and you are informed that you are entitled to access the file, object, correct and delete your data, by sending a registered letter to the Company Administration Department, C/Lleida 10, 08500 Vic. Customer data will be used to carry out basic tasks of administration, invoicing and sending out commercial information and advertising. We consider the data collected to be adequate, pertinent and not excessive in relation to the sphere and purposes described.
6.- Rights of THE COMPANY in the event of a complaint: if the goods or services contracted are to be deemed defective by the Customer, THE COMPANY shall have a reasonable opportunity to prove that they are satisfactory, adequate or correct according to the Accepted Contract Order in question. To this end, shipping and travel costs will be borne by THE COMPANY wherever the location involved is, where the Customer proves that the said goods or services are not in accordance with the Accepted Contract Order. Where, on the other hand, the Customer complained about a non-conformity, inadequacy or incorrectness in the goods and services contracted and THE COMPANY is able to prove that fair grounds do NOT exist for the complaint in question, THE COMPANY shall be entitled to claim DOUBLE the price (plus all expenses arising from the disagreement, such as costs of return (if incurred) and transport).
7.1. Guarantee by THE COMPANY of the suitability of the Products: in accordance with the stipulations of Condition 3.2 above, THE COMPANY guarantees and will be liable to the Customer for any unsuitability or nonconformity in the goods and services contracted (i) unless the Customer has NOT followed THE COMPANY’s recommendations and suggestions, especially with regard to the Products or spare parts to be purchased and/or installed, (ii) providing the Customer maintains the product in accordance with current regulations and manufacturer’s recommendations, and (iii) providing the physical and volumetric conditions of the product have been maintained in the same form; (iv) providing the complaints are not due to acts of vandalism or phenomena of force majeure, or else unsuitable use, destination or location of the product.
7.2. Customer guarantee regarding the Products: the Customer bears sole responsibility for (i) storage and care of the Products during the time taken to carry out installation and start-up tasks, and THE COMPANY shall not be liable for any circumstances or events which might affect correct and proper storage of the Products whether this is due to inclement weather, any damage, theft or wear and tear and use of the Products before they are finally put into service (site handover).
7.3. Authorisation to subcontract:
From the time when each Contract Order is placed, the Customer authorises THE COMPANY, if it sees fit, to subcontract the provision of certain Services (installation, assembly, start-up, transport, handling, etc.) to a third party
7.4 A 2-year warranty is given in the event of faults due to defects in the material used to manufacture the product.
7.5. Guarantee cover for damaged parts: the guarantee is limited to THE COMPANY’s products. Damaged parts will be replaced by THE COMPANY and delivered to the Customer’s address free of charge.
7.6. The warranty cover is applicable only if proper contract work is carried out and the products are properly maintained.
a) The warranty is void if the installation and use of the products are not in accordance with the instructions supplied by THE COMPANY or if proper maintenance is not carried out in accordance with the recommendations in the general conditions of sale, and in accordance with applicable current legislation at all times.
b) The warranty is void if the use made of the product is not that for which it was designed, and it is unable to perform functions other than those explicitly intended. Where proper use cannot be proven, this warranty shall not be applicable.
7.7. Use, wear and tear, misuse and vandalism are not covered.
The warranty does not cover normal use and wear and tear, surface discolouration of the product which does not affect its physical qualities and other aesthetic features or defects due to misuse (for example use of the equipment outside the age groups specified) or vandalism.
7.8. Obligation of maintenance: for this warranty to be effective, the product must be properly maintained in accordance with current regulations and the following specifications:
- Basic general cleaning every day.
- If any circumstance is detected involving damage to the product the area must be cordoned off within a maximum of 24 hours to prevent access by other users which might make the damage worse.
- Maintenance work must be done by duly accredited people, with experience in this type of job and in possession of the material resources necessary for the purpose.
8. Limitation of actions
8.1. Limitation based on actions by the Customer: in any case, THE COMPANY shall under no circumstances be liable for (i) any cost, charge or damage arising from any non-compliance by the Customer with their obligations by virtue of these General Contract Conditions, (ii) infringement by the Customer of any law or regulation in the area of consumer protection, health and public order, (iii) any indirect, special or derived damage or loss of revenue, profits, business or savings anticipated by the Customer, including in the event that THE COMPANY has been warned of the possibility of such damage arising, (iv) any fines, sanctions, compensation, damages, costs or fees arising from the Contract or in connection with it.
8.2. Limitation on time: THE COMPANY shall bear sole responsibility for any defects in the delivery of which it is informed within the first FIFTEEN (15) DAYS following delivery of the goods or services contracted and, in any case, before it is delivered or sold to third parties.
8.3. Limitation on amount: in any case, any liability of THE COMPANY shall be limited to the price of the goods or services contracted in relation to which such liability arose.
8.4. Compensation: The Customer must compensate and ensure that THE COMPANY is not liable for any claim, real or alleged, by third parties and any payment of costs, charges, liability, damages, fines or sanctions where such claims result from a failure by the Customer to meet their obligations by virtue of the Contract.
The Customer’s consent will not be required for the assignment by THE COMPANY, to any company in its group or any subsidiary thereof, of its obligation to fulfil Accepted Contract Orders. Notwithstanding the above, assignment by the Customer of any of the rights and/or obligations arising from an Accepted Contract Order will require the consent of THE COMPANY.
10.1. Obligation of the Customer: The Customer undertakes not to refer to the Accepted Contract Order or to deliveries it receives in fulfilment thereof in any of its advertising or promotional material, except with the express written permission of THE COMPANY.
10.2. Confidential Information and exceptions: except in the case of prior written consent by THE COMPANY, the Customer shall maintain confidentiality and may not reveal any Confidential Information received from THE COMPANY to third parties. For these purposes, "Confidential Information" is considered to mean: (i) any information concerning the terms and conditions of the Accepted Contract Order, (ii) documents or information (in particular, commercial, technical or price information, etc.) referring to any Accepted Contract Order, (iii) any information concerning the features of the Products. This obligation of confidentiality shall not however apply to any Confidential Information which (i) was known to the Customer beforehand and not subject to any previously-existing obligation of confidentiality, (ii) was consciously revealed to third parties without any restriction by THE COMPANY, (iii) was or became public knowledge, providing this was not due to unauthorised revelation.
10.3. Ownership of the Confidential Information: The Confidential Information belongs to THE COMPANY and, upon request by it, the Customer must return all the Confidential Information received in a tangible form to the Party which revealed it or else destroy the said Confidential Information.
10.4. Duration of the obligation of confidentiality: This obligation of confidentiality will begin on the date of the Accepted Contract Order and will remain in force for FIVE (5) years counting from delivery of the last Accepted Contract Order.
11. Force Majeure
11.1. General rule on exemption from liability: neither of the Parties shall be liable for any damages suffered by the other Party which are a consequence of a failure by the other Party to meet its obligations by virtue of these General Contract Conditions, where such failure is due to events which could not be prevented by the former Party (force majeure).
11.2. Exception regarding obligations to pay: however, neither of the Parties shall be released for this reason from any obligation to pay arising from proper compliance with these General Conditions for Contract Services.
11.3. Obligation of communication: in the event that, due to force majeure, either of the Parties is unable to meet its obligations in accordance with these General Conditions for Contract Services, the Party affected must inform the other Party of the circumstances and the expected delay or other adverse effects pending fulfilment as soon as possible.
11.4. Causes of force majeure: the circumstances referred to by this clause include, but are not limited to, the following: (i) total or partial strikes, third-party lock-outs, bad weather, epidemics, blockage of means of transport or deliveries whatever the cause, earthquake, fire, storm, flood or water damage; (ii) governmental, legal or national or community restrictions on the provision of the Contract Services or supply of the Products, and/or (iii) prolonged or systematic delay in the manufacture, production or supply by third parties of any substance, element or material which forms part of the Products (except to the extent that THE COMPANY can have recourse to other third parties).
12. Presumption of non-waiver of rights
The fact that either of the Parties may at any time not demand compliance with any of the terms set forth in these General Contract Conditions shall not be considered as a waiver of any right contained herein and shall not stop the said Party from requiring strict compliance with the term in question, or any other term set forth in the General Conditions for Contract Services at any other time.
13.1. Substantive nature of the General Contract Conditions in relation to previous agreements: these General Contract Conditions replace any other oral or written agreements between the parties regarding the subject hereof. The Parties declare that they have not placed any Contract Order or Accepted Contract Order on the basis of any declaration made by THE COMPANY which is not set forth in these General Contract Conditions.
13.2. Effect of any illegal, impossible, invalid or inapplicable stipulations: any stipulation set forth in these General Contract Conditions which is against the law or which cannot be enforced for any reason is considered to be deleted, without this affecting the rest of the stipulations herein.
13.3. Communication between the Parties: any notification or communication to be made between the parties according to these General Contract Conditions shall be effected or confirmed by e-mail, notwithstanding the right of the Parties to opt to send them by fax.
13.4. Applicable law and competent jurisdiction: these General Contract Conditions shall be governed and construed in accordance with Spanish law. Any conflict or dispute concerning these General Contract Conditions shall be submitted to the Courts and Tribunals of the town of Vic, in the province of Barcelona.