General Terms and Conditions of Business
- General Provisions
1.1 These General Terms and Conditions of Business (hereinafter referred to as “T&Cs”) exclusively govern all current and future sales and supplies made by UHUSIANO S.L., Paseo de la Castellana 95 – Planta 16. CP: 28046 MADRID (hereinafter referred to as the “Seller”). Unless the Seller has expressly consented to them in writing, it will not recognize any terms and conditions of the Purchaser which deviate from its own. These T&Cs will apply even if the Seller has made an unconditional delivery to the Purchaser, despite knowing that the Purchaser´s conditions conflict with or deviate from these T&Cs.
1.2 Any arrangements or collateral agreements made between the Seller and Purchaser for the purposes of performing this contract (i.e. which do not affect the conclusion of the contract as such) must be in writing in order to be valid. Any waiver of the requirement of writing must also be made in writing. Notices sent by fax or e-mail satisfy the requirement of writing.
1.3 These T&Cs, as amended or replaced from time to time, also apply to follow-up orders and ongoing business dealings between the Parties.
- Industrial Property
2.1 The Seller is the owner of all right, title and interest in, and to, any trade mark registrations, used in the provision of the supplied Goods (the “Trademarks”).
2.2 All goodwill resulting from the use of Trademarks by Purchaser, including any additional goodwill that may develop because of Purchaser’s use of the Trademarks, will inure solely to the benefit of the Seller, and the Purchaser will not acquire any rights in the Trademarks except those rights specifically granted in a writing signed by the Seller.
2.3 The Purchaser will use the Trademarks in strict conformity with the terms agreed by the Seller, Seller’s directions and with Seller’s corporate policy regarding trademark usage.
2.4 The Purchaser shall not: (a) use the Trademarks in any manner likely to diminish their commercial value; (b) knowingly use any name, domain name, logo or icon likely to cause confusion with the Trademarks; (c) make any representation to the effect that the Trademarks are owned by the Purchaser rather than the Seller (d) file or obtain, or cause any third party to file or obtain, any applications or registrations or domain names for the Trademarks or any terms confusingly similar to the Trademarks; or (e) challenge the validity of Seller’s ownership of the Trademarks. Purchaser further will not at any time, either during the term of or after the expiration of the contractual relationship between Parties, contest the validity of the Trademarks or assert a claim or any other right to manufacture, sell or offer for sale products under the Trademarks, or any trademark confusing hereto.
- Offers, Acceptance of Orders and Scope of Supply
3.1 The offers made by the Seller are non-binding. They do not bind the Seller until it has confirmed them in writing or completed an order.
3.2 The Seller will accept orders either by sending the Purchaser a written order confirmation or by delivering the goods ordered to the Purchaser. Silence on the part of the Seller does not constitute acceptance.
3.3 The Purchaser must expressly describe the scope of supply in its order. The Seller´s written order confirmation will determine the agreed scope of supply.
3.4 Any information about weights or measurements or similar matters in documentation to which the Seller refers in its offer (e.g. images, drawings in catalogs, leaflets, brochures or specialist literature) is provided purely for informational purposes and is not binding unless it is specifically described as such.
4.1 Unless agreed otherwise, the prices for deliveries are net prices subject to the application of value-added tax at the current rate and other charges. The prices stated are exclusive of the costs of packaging, transportation, insurance, customs and unloading.
4.2 The price becomes fixed as soon as the Seller accepts an order. The Purchaser and Seller will negotiate price adjustments where
- a) they have expressly agreed to do this;
- b) the scope of supply is changed at the Purchaser´s request after the order is accepted.
- Terms of Payment
5.1 Unless agreed otherwise, the Seller´s invoices are due and payable without any deductions upon presentation to the Purchaser of the original documentation, such as the Bill of Lading.
5.2. Subject to any agreement to the contrary, the Seller may elect to receive payment in advance or invoice the Purchaser.
5.3 Payment must be made without any deductions such as unapproved discounts, fees or taxes or any other kinds of deductions. Payment must be made unconditionally.
5.4 All payments must be made directly to the Seller.
5.5 If the Purchaser is late in payment, the Seller is entitled to withhold the supply of all goods and services until such time as the Purchaser has paid its outstanding debts.
5.6 In the event that insolvency proceedings are instituted against the Purchaser, all amounts owing to the Seller will become immediately due and payable.
5.7 The Seller is permitted to deduct payments by the Purchaser from existing debts. If costs or interest have already accrued, the Seller will be entitled to first deduct payments by the Purchaser from the costs, then from the interest and finally from the principal debt.
- Sanitary Certificate
6.1 Regarding food products, if the Seller has sold and delivered the goods with a health and quality certificate issued by the sanitary Department, or a phytosanitary certificate or even a quality certificate issued by the competent authorities, instance or survey bureau, the contents of the health and quality certificate are decisive, unless there is proof to the contrary by the Purchaser, for the question whether or not the agreed quality specifications have been met.
6.2 The Seller is allowed to replace the goods which have been refused on good grounds, by other goods, but it is not bound thereto. In that case the Seller can deduct the refused quantity from the sold quantity.
6.3 If the Purchaser refuses without good grounds to accept the goods, tendered for delivery, the Seller is allowed, also in case of a part delivery, to rescind the agreement, to the extent that this has not been performed, whilst no notice is necessary.
7.1 Delivery will be made “ex works” (EXW – Incoterms 2010) unless the Parties have agreed otherwise in writing.
7.2 The products to be delivered are perishable and the shelf life is largely dependent on the manner of keeping, on which the Seller has no influence anymore after delivery. Therefore, the Purchaser must inspect or have the delivered products inspected on delivery to establish whether these comply with the demands and quality agreed.
7.3 Delivery dates are only binding if they have been expressly agreed as such. Any dates agreed for delivery are subject to the condition that the Seller´s own suppliers have delivered on time, that all technical questions have been resolved, and that delivery is not prevented by force majeure pursuant to subsection.
7.4 A delivery date is met if the goods are ready for shipment at the Seller´s premises and the Seller has notified the Purchaser that they are ready. Where the Purchaser requests the Seller to ship the goods to another destination, the date of shipment will be the relevant date for determining compliance by the Seller with the delivery date.
7.5 The period agreed for delivery commences on the date the order confirmation is received. The delivery deadline will, however, be extended if delivery is prevented by one or more of the causes in (a) – (f) below. The deadline will be extended for the length of the period during which delivery was prevented, plus a reasonable amount of start-up time thereafter.
- The Purchaser has not provided the documents needed for performing the order.
- The Purchaser wishes to make changes to its order which are accepted by the Seller and which make it necessary to extend the deadline for delivery.
- The Purchaser or its subcontractors have failed to provide the Seller with the necessary information or assistance which it needs to properly fulfill the order.
- The Purchaser has not complied with its contractual obligations according to the order, in particular it has not fulfilled its payment obligations.
- Force majeure, strikes or other delays or obstacles beyond the Seller´s control prevent delivery. An event of force majeure includes but is not limited to: Strikes, lockouts, delays in transportation, severe weather conditions, riots, civil war, sabotage, labor shortages due to illness, epidemics and disruptions to operations outside of the Seller´s control and acts of governmental authorities. An event of force majeure also occurs where the Seller´s suppliers or subcontractors are subject to the events described. The Seller will notify the Purchaser in writing as to the date when the period during which delivery is prevented begins and when it ends.
- The Purchaser has unilaterally stopped completion of the order.
7.6 The Purchaser can claim only regarding the quality and quantum of the delivered goods at the time of delivery of the goods. Delivery will take place in the moment of the notification that the goods are made available to the Purchaser, or otherwise, in the moment agreed.
7.7 The Purchaser has waived his right to claim after three working days from the day of delivery in conformity with the agreed delivery conditions.
7.8 The fact that the Seller signs off freight and/or delivery documents does not constitute confirmation by it of the agreed quantity, quality or type of goods or of any other terms of the contract.
7.9 The Purchaser who refuses to receive the goods on the ground of alleged bad quality is obliged to notify the Seller thereof immediately and anyhow within 6 hours after refusal per telefax or by pdf document sent by e-mail. If the Seller rejects the complaint of the Purchaser, the Purchaser is held to have independent survey carried out and invite the Seller for a counter survey immediately, that is to say within 12 hours, failing which the Purchaser will lose its rights.
7.10 The Seller is entitled to deliver more or less than the agreed quantity due to organizational reasons, where delivery of an approximate quantity has been agreed and where the discrepancy between the quantity ordered and the quantity delivered does not exceed 10%, provided that the Purchaser can reasonably be expected to accept this and no agreement to the contrary was made. The Purchaser is obliged to accept the additional quantity and pay for it.
7.11 The Seller is entitled to deliver the goods in whole, or in installments, provided that the Purchaser can reasonably be expected to accept this.
- Packing and Transportation
Unless expressly agreed otherwise, the Seller is entitled to select the method of transportation and the carrier. Upon request from and at the expense of the Purchaser, the Seller will take out suitable transport insurance. Upon request from and at the risk and expense of the Purchaser, the Seller will ship or deliver the goods to another destination.
- Limitation of Liability
9.1 The Seller´s liability for contractual and non-contractual (in particular tortious) claims and culpa in contrahendo is limited to cases of intentional wrongdoing, gross negligence and fraud in accordance with the law. The Seller is liable on the same basis for its legal representatives and vicarious agents. In addition, the Seller will be liable for any intentional or negligent breach of material contractual obligations. Unless the Seller is guilty of an intentional or grossly negligent breach of contract or of fraud, its liability for damages will be limited to the foreseeable damage that typically occurs. It otherwise excludes all liability. The Seller´s liability for claims arising from loss of life, bodily injury or illness remain unaffected.
9.2 The limitation period for claims by the Purchaser is 12 months from the passing of risk; according to Article 1.968 of the Spanish Civil Code. The limitation period will not begin again where the Seller replaces the goods.
9.3 The Seller does not warrant in its data sheets – in particular, in the data in its brochures and product descriptions – that the goods have particular characteristics. Such data are purely non-binding guidelines.
The Purchaser and the Seller agree to treat confidentiality all documents, data, materials and information, which they receive from one another or to which they otherwise become privy. They agree that they will not pass same on to any third party or use same directly or indirectly in relation to third parties unless this is strictly necessary.
- Termination of the Contract
11.1 The Seller may terminate the contractual relationship for good cause. Good cause exists in particular in the following cases:
If either of the Parties is dissolved or wound up (liquidation) unless such Party is dissolved in connection with a merger or amalgamation.
If either of the Parties ceases to trade.
11.2 If the Seller can reasonably be expected to do so, it should set the Purchaser a reasonable grace period of 30 days prior to issuing its notice of termination so that he has an opportunity to eliminate the grounds for termination. This prior warning should state the grounds for termination of the contract.
11.3 Notice of termination must be given in writing in order to be effective.
- Set-Off, Rights of Retention
12.1 The Purchaser may only set off claims that are undisputed, non-appealable or have been acknowledged by the Seller. The Purchaser is only entitled to exercise rights of retention to the extent that these arise from the same contractual relationship. The Seller´s written consent must be obtained before any claim against it may be assigned in whole or in part.
12.2 Subject to any mandatory statutory prohibition of same, the Seller is entitled to set off any claims whether due or not.
13.1 If the Purchaser being a person residing outside of the territory of Spain or its agent collects and transports the goods, or if the goods are shipped by it to a location outside of the territory Spain, the Purchaser will be obliged to provide the Seller with the proof of export required for tax purposes. If the Purchaser fails to provide this proof, it will be responsible for payment of the domestic value-added tax on the invoice.
13.2 The Seller is entitled to store the data of its business partners (e.g. bank details and tax numbers) in a suitable manner and use same for its own purposes provided it complies with the Regulation (EU) 2016/679 of the European Parliament and of the of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
- Place of Performance, Place of Jurisdiction, Applicable Law and Savings Clause
14.1 The Seller´s registered office is the place of performance unless the order provides otherwise.
14.2 Any disputes or claims arising out of or in connection with this contractual relationship shall be resolved by submission to arbitration. Any arbitration hearing shall be held in Madrid (Spain), before the Madrid Court of Arbitration. Nonetheless, the Seller is also entitled to institute legal action against the Purchaser at its registered office.
14.3 The law of Spain applies to the exclusion of the United Nations Convention on the International Sale of Goods.
14.4 In the event that any provision of these T&Cs is or becomes void, this will not affect the validity of the other provisions. To the extent that is reasonable, the Parties will be obliged in such case to replace in good faith the invalid provision with a valid provision which approximates as closely as possible the economic effect of the invalid provision without significantly changing the content of the contract; the same applies if matters requiring regulation have not been expressly regulated in the contract.