Terms and conditions of sale
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EMBEGA S COOP, with registered offices in Villatuerta, Navarra (Spain), as well as all its subsidiaries operating in the market under the name and trademark EMBEGA, is hereinafter referred to as the SUPPLIER. THE CUSTOMER, who purchases goods and services from the SUPPLIER is hereinafter referred to as the BUYER.
- 0.1 THE SUPPLIER is a company dedicated to the manufacture and commercialization of components for different sectors.
- 0.2 THE BUYER is interested in acquiring components from the SUPPLIER to be used in its products.
- 0.3 THE SALES AND SUPPLY CONDITIONS of this document are applicable to the purchase and sale operations between the parties.
- 0.4 The Purchaser, exercising its freedom of choice in the market, by placing its orders with the Supplier, unequivocally accepts these Conditions www.embega.es Version 1.30032012 Page 3 of 9
These General Conditions are the only ones applicable to regulate the Sales transactions between the SUPPLIER and the BUYER, except in cases where there are other written Agreements, signed by the Parties and in full force and effect.
In the latter case:
- If in the written Agreements signed by the Parties and in force, there are clauses that conflict with those contained in these Conditions, those of the Agreements in force expressly signed by the Parties shall prevail.
- If in the written Agreements signed between the Parties and in force, any of the Conditions contained herein are not included, the latter shall apply.
Any other Condition of the BUYER pre-printed in the orders, supply programs, published by computer media (WEB, etc.) that has not been expressly accepted and signed by the SUPPLIER, shall not be valid.
The fact that the PURCHASER places an order is sufficient for the PURCHASER to be aware of the General Conditions and to accept them in their entirety, except in the cases indicated above.
2. SCOPE OF APPLICATION
These conditions shall apply to all products manufactured or marketed by the Supplier, regardless of where they are manufactured or sold.
3. DOCUMENTATION AND CONFIDENTIALITY
All documentation issued by the SUPPLIER to the Purchaser and vice versa, relating to products, commercial relations, drawings, quality certificates, specifications, offers, contracts, price lists, etc., shall be considered as confidential information and must not be disclosed to third parties without the prior authorization of the other Party.
4. TERMS OF DELIVERY
Unless otherwise agreed in writing between the parties or expressly stated in the offer issued by the SUPPLIER, the contracting parties agree that deliveries of the components shall be made under DDU (Incoterms 2000) conditions at the BUYER's warehouse, against payment 60 days from the date of invoice. www.embega.es Version 1.30032012 Page 4 of 9
5. OBLIGATIONS OF THE PURCHASER
The BUYER undertakes vis-à-vis the SUPPLIER to:
- 5.1 To accept the goods placed at its disposal under the conditions set out in clause four.
- 5.2 To promptly pay the invoices issued by the SUPPLIER.
- 5.3 To provide the cooperation required in each case.
- 5.4 To comply with the rest of the obligations assumed in these Conditions in the Purchase and Sale operations maintained between the Parties.
6. OBLIGATIONS OF THE SUPPLIER
Without prejudice to what the parties may agree in other contracts entered into, the SUPPLIER hereby undertakes to place at the PURCHASER's disposal the goods corresponding to the orders accepted and confirmed by the SUPPLIER under the Conditions set forth herein.
7. PRICES, TERMS OF PAYMENT AND THEIR COMPLETION
- 7.1 Both parties agree that both the price and the payment conditions of the sales made shall be the last ones communicated in writing by the SUPPLIER to the BUYER, prior to the issuance of the latter's order and, in turn, shall be in accordance with those appearing in the invoice that the SUPPLIER shall issue in the name of the BUYER.
- 7.2 Any licenses, taxes, tariffs, customs clearances and other necessary official authorizations resulting from the dispatch and delivery of the goods shall be for the account and at the expense of the BUYER.
- 7.3 The offers, prices and conditions of sale communicated by the SUPPLIER shall remain valid until further communication by the SUPPLIER, and the SUPPLIER reserves the right to modify these conditions whenever it deems appropriate.
- 7.4 In the event of such modifications, they shall be applicable to any new order issued by the BUYER as from the 16th day after receipt of the communication of the new conditions of sale.
- 7.5 Payments shall be made punctually, on the due dates of the invoices and for the full amount thereof, to the bank account indicated for this purpose by the SUPPLIER.
- 7.6 Prohibition of set-off: Buyer shall not deduct from payments any amount for claims, delays, non-delivery, transport, quality, etc., unless compensation has been expressly accepted in writing by the SUPPLIER.
- 7.7 Failure by the BUYER to pay due and payable invoices, having been requested in writing on up to THREE occasions, shall entitle the SUPPLIER to terminate the contract, suspend or limit orders in progress until all outstanding amounts have been paid in full, without prejudice to any other legal action to which the SUPPLIER may be entitled. www.embega.es Version 1.30032012 Page 5 of 9
- 7.8 Reservation of Title: The property of the goods sold shall remain the exclusive property of the SUPPLIER until the PURCHASER has paid in full. In case of partial or total non-payment, the BUYER undertakes not to encumber the goods subject of sale and to meet the requirements of return of the SUPPLIER, taking charge of all expenses in case of loss of value, logistics costs, and customs, if any.
8. DEVELOPMENT AND MODIFICATION AND/OR UPDATE OF COMPONENTS
THE SUPPLIER is the owner of the designs of the products it sells and/or markets. Consequently, it may make modifications that do not impair either the functionality or the quality of its products without the express authorization of the BUYER.
Such modifications shall always be in accordance with the regulations applicable to such products for use in household appliances and in compliance with the technical specifications of the product.
9. SUPPLY, RELEASE OF GOODS AND OBSOLETE LIABILITY
- 9.1 THE SUPPLIER shall inform the PURCHASER of the delivery terms of the products subject of the Sale or Supply. The delivery period shall begin to be calculated as from the first working day, according to the SUPPLIER's working calendar, from receipt of the order by the SUPPLIER.
- 9.2 Once the order has been received by the SUPPLIER, the BUYER may not cancel or modify the contents of the order except by express acceptance by the SUPPLIER.
- 9.3 In the case of regular deliveries, if the BUYER uses a regular computerized ordering system (via WEB, EDI, email, Excel files, etc.) with forecast information and delivery confirmations (call off), the following responsibilities are established:
- 9.3.1 THE SUPPLIER shall use the forecast information to take stock of materials and manufacture the goods subject of the Sale.
- 9.3.2 THE SUPPLIER shall use the information from the closed order, delivery confirmation or call off to carry out the dispatch of the goods.
- 9.3.3 In the event that the buyer is going to dispense with the purchase of a good, significantly reduce its consumption or replace it with another, it shall inform the SUPPLIER in writing with TWELVE working WEEKS' notice.
In the event of non-compliance with the provisions of the previous point, the SUPPLIER may claim from the BUYER either the amount corresponding to an order for the quantity necessary to finish with all the goods in stock, or the equivalent economic compensation of scrapping the specific raw materials of the good object of sale of which its consumption has decreased. www.embega.es Version 1.30032012 Page 6 of 9
- 9.4 In the event that it is agreed that transport shall be at the expense of the SUPPLIER, the most economical transport shall be contracted.
If, for reasons of urgency of any nature, urgent transport is necessary, this shall be at the PURCHASER's cost and expense.
10. LIABILITY OF THE SUPPLIER
- 10.1 In the event of failure to meet delivery deadlines for reasons attributable to the SUPPLIER, the BUYER may request, by way of compensation, an indemnity for a maximum amount of 0.15% of the value of the delayed supply and for each week of delay overdue, counted from one week after the date confirmed by the supplier. This penalty shall in no case exceed 3% of the value of the delayed goods, and shall include the damages resulting from the cause stated.
- 10.2 The maximum amount for which the SUPPLIER is liable for all indemnifiable items attributable to it for any reason whatsoever and excluding any other indemnity, shall be 3% of the sales of all the specific items that are the object of the claim sold and for a maximum period of one (1) year.
- 10.3 THE SUPPLIER shall in no case be liable for economic losses, loss of profit and other indirect expenses suffered by the BUYER.
- 10.4 In the event that, in the opinion of the SUPPLIER, the products being sold present a defect that implies a risk to the safety of users, the goods having already been made available to the BUYER, the SUPPLIER shall be obliged to carry out a supplementary performance. This shall be carried out at the discretion of the SUPPLIER, who shall bear the costs of such intervention corresponding to the replacement of materials, labor, packaging and transport.
The SUPPLIER may in such cases choose to eliminate the defect detected, to select the material concerned, or to supply free of charge components free of the defect to the Purchaser.
11.1 THE SUPPLIER warrants its products for the time and with the exceptions indicated below, against design defects, defects in the materials used, as well as defects in the manufacturing process that affect the result of the product.
11.2 The warranty period shall commence upon receipt of the goods by the BUYER and shall last for a period of 12 months. The BUYER shall notify the SUPPLIER of any problems detected in the product within 15 days of becoming aware of them. www.embega.es Version 1.30032012 Page 7 of 9
11.3 During the warranty period, THE SUPPLIER shall carry out, after selecting the products indicated by THE PURCHASER as defective, the repair, replacement or supply of any product recognized as defective by THE SUPPLIER and provided that the same does not comply with its functionality, with the applicable regulations or with the technical specifications, without the PURCHASER being entitled to any further compensation. The choice between the various options provided for in the preceding paragraph shall be the exclusive responsibility of the SUPPLIER. The defective product replaced in accordance with this clause shall remain at the disposal of the SUPPLIER.
11.4 The following are excluded from this warranty: The product deteriorated by natural wear and tear, negligent handling, contrary to the safety or technical standards of the product, insufficient surveillance and any type of negligence on the part of the Purchaser. Defects and/or defects caused by faulty handling and/or assembly or installation by the Buyer or by reason of modifications or repairs carried out without the written agreement of the SUPPLIER. Defects caused by materials, fluids, energy or services used by the Purchaser, or those caused by a design imposed by the Purchaser. Breakdowns caused by acts of God, force majeure (atmospheric or geological phenomena) and disasters or any other type of natural catastrophe. In general, any indirect, consequential and/or collateral damage.
12. CAUSES FOR EXCLUSION OF THE SUPPLIER'S LIABILITY
- 12.1 THE SUPPLIER shall not accept claims for loss, damage or any other claim not provided for in this agreement, unless expressly accepted in writing.
- 12.2 The Supplier's liability shall be excluded if the goods are defective or defective due to the PURCHASER's failure to exercise due diligence in handling, installing and preserving the product.
- 12.3 Under no circumstances shall the SUPPLIER be liable to the PURCHASER for claims arising from damages caused by the latter to third parties.
- 12.4 The SUPPLIER shall not be liable for any defects, wastage in the product, when the product complies with its functionality and is suitable for the use intended by the SUPPLIER and conforms to the technical specifications of the product. www.embega.es Version 1.30032012 Page 8 of 9
- 12.5 THE SUPPLIER shall in no event be liable for any economic loss, pecuniary damage, loss of profit, consequential damage suffered by the BUYER as a result of a defective supply.
- 12.6 The BUYER assumes full responsibility for the approval of the components of the SUPPLIER, for the purpose of considering them suitable for assembly in its products and its handling and assembly processes. Likewise, it is the responsibility of the Purchaser to establish the necessary means of control and Quality to detect any anomaly promptly, as well as to maintain the traceability of the components supplied by the SUPPLIER in its appliances in order to be able to identify those affected in the event of a supposed problem in the components.
13. REFUSAL OF SALE OR SUPPLY
The Supplier may refuse the execution of the Purchaser's orders, pending Supply, or the execution of new orders, in the following cases:
- 13.1 For the Purchaser's failure to comply with any of the obligations assumed in these Conditions.
- 13.2 Due to the admission of any type of insolvency, bankruptcy or suspension of payments proceeding that may fall due in the event of the Buyer's failure to comply with any of its obligations under these Conditions.
The Supplier undertakes to publish these Conditions of Sale and Supply in a visible and accessible manner for the Purchaser, as well as to send them in electronic format so as to ensure that they are known at the time of placing orders.
15. APPLICABLE LAW
Any litigation that may arise between the Parties in the commercial operations shall be governed by these Conditions and in what is not foreseen in them, by the Code of Commerce, special laws and commercial uses of Spanish law.
Likewise, both parties agree that for any discrepancy that may arise in relation to the interpretation or execution of this contract, as well as those that may be materialized under it, the parties expressly submit to the Courts of Bergara (Gipuzkoa), Spain, renouncing any other jurisdiction that may correspond to them.
17. PREVALENCE OF THE SPANISH VERSION
In the event of discrepancies of interpretation arising between the two versions of this agreement, the parties agree that the version drafted in Spanish shall prevail. www.embega.es Version 1.30032012 Page 9 of 9 1
18. ADDITIONAL CLAUSE
If any provision of these General Conditions is declared by a court of competent jurisdiction to be unlawful, void or unenforceable, all other provisions shall not be affected and shall remain in full force and effect.