TERMS AND CONDITIONS OF SALE LEHVOSS C.D. IBERIA, S.L.U.
1. APPLICATION OF THESE GENERAL CONDITIONS OF SALE
1.1. For all business transactions between LEHVOSS C.D. IBERIA, S.L.U. (‘LEHVOSS’) and the Buyer, only these Terms and Conditions of Sale shall apply. These Terms and Conditions of Sale cancel and replace any previous Terms and Conditions of Sale. The mere supply of goods shall not be considered as recognition of the commercial terms of the Buyer; on the contrary, by receiving the goods the Buyer expresses its agreement with these Terms and Conditions of Sale. The Buyer guarantees that it is not a consumer and that the contracts concluded with it will not be subject to consumer protection regulations.
1.2. The General Conditions of the Buyer shall not apply, even if they are not expressly excluded, nor in the case of silence on our part, but must be confirmed in writing for each transaction individually.
2.1. Our offers do not imply a delivery commitment. An order shall only be binding for LEHVOSS when it has been confirmed in writing by LEHVOSS. The same shall apply to any modifications, complementary orders and/or verbal ancillary agreements made. A waiver of the requirement for written form must also be in writing.
2.2. LEHVOSS may issue a written confirmation of the order by fax or email. In such a case, the Buyer must immediately communicate by fax or email any possible errors in the confirmation of the order on the part of LEHVOSS.
3. DELIVERY DATE
3.1. The delivery dates or agreed supply times shall be met as far as possible, and, unless there is a binding and express commitment to delivery on a fixed date, these indications should only be considered as indicative and points of reference and not as binding commitments. In the case of a delay in supply, the Buyer may establish a reasonable additional period for said supply and, if not fulfilled, shall have the right to withdraw from the contract. The Buyer may only claim compensation for damages arising from the delay in supply after the reasonable additional period of delivery has elapsed and in the event that such delay is due to willful or grossly negligent conduct of a legal representative or employee of ours. In case of slight negligence, our liability is limited to those damages arising from the contract that were foreseeable, said damages however being established at a maximum of 10% of the purchase price agreed on only the specific goods whose supply is delayed.
3.2. For reasons of force majeure, which includes restrictions of rights, as well as strikes and lockouts, LEHVOSS shall be entitled to postpone supply for the duration of the impediment, or to withdraw fully or partially from the contract, without having to compensate for damages. This shall also apply in the case of other unforeseen circumstances that prevent, delay or hinder the manufacture or shipment of the goods, as well as in the case of lack of energy or raw materials. In the case of partial or total failure on the part of our sources of supply, we are not obliged to source from other suppliers.
4. PRICES AND EXCLUSION OF OFFSETTING
4.1. All prices are EXW (‘ex works’), in accordance with INCOTERMS® 2010, and the corresponding applicable value added tax will be added to them. If taxes and/or fees are increased before the delivery date, we are authorised to adjust our prices in accordance with said increase. In particular, an increase in the value added tax between the conclusion of the contract and the actual delivery shall lead to an increase in the gross purchase price to the same extent. The same shall apply to the increase of transport costs, regardless of whether these should be borne by us or by the Buyer.
4.2. Any offsetting on the part of the Buyer against reciprocal credits is excluded, except in the case of undisputed or legally demandable claims of the Buyer. Offsetting on the part of the buyer shall be permitted only and exclusively if the claim could be claimed in court and if no exception could be invoked against it.
5. TERMS OF PAYMENT
5.1. Unless agreed otherwise, the due date of the invoices shall be 30 days after the date of the invoice.
5.2. In the case that the Buyer enters into arrears, it must pay interest in relation to the amount owed, taking as a reference the legally established rate of interest on arrears. However, LEHVOSS reserves the right to claim damages caused by late payment and oppose them as an exception to any liability for damages.
5.3. The solvency of the Buyer is a necessary condition for all deliveries. In the event that LEHVOSS becomes aware of the insolvency of the Buyer, whether current or imminent, during the term of the contract, the Buyer must pay all invoices due and payable immediately. LEHVOSS may also demand that in such a case, guarantees are established before the delivery of the remaining pending goods, and in the case they are not provided within a reasonable period, it may withdraw from the contract or demand prepayment.
5.4. Likewise, we are entitled to revoke the right of resale of the goods delivered with retention of title as well as the right to collection of debts. The right of retention of the Buyer is excluded as long as it is not based on the same legal relationship.
6. RETENTION OF TITLE
6.1. Ownership of the goods shall pass to the Buyer once the total purchase price and all other receivables, including futures, derived from the contractual relationship with LEHVOSS have been paid. As long as the Buyer fulfils its obligations to LEHVOSS, it shall be entitled to further use the goods in its production and to sell them as part of its ordinary business activities.
6.2. We may demand from the Buyer the return of the goods subject to retention of title, without setting an additional term or having to declare the contract avoided, in the case that the Buyer does not fulfil its obligations correctly despite having established a deadline for doing so. In order to carry out the return of the goods, the Buyer is obliged to provide LEHVOSS with access to its facilities.
6.3. Seizure or transfer by way of security of the goods subject to retention of title is excluded.
6.4. The Buyer is entitled to collect the receivables from a further use of the goods subject to retention of title in the framework of its ordinary commercial transactions in the course of its business. At our request, the Buyer must communicate the assignment to its customers, refrain from disposing of its receivables, and provide us with all the necessary information regarding the status of the goods in our property, as well as the receivables that have been assigned to us, and provide us with the documents to enforce said assignments. Claims or actions of third parties to goods subject to retention of title and the assigned receivables must be communicated to us without delay.
6.5. Our retention of title in accordance with the above provisions is also maintained if there are individual receivables that are included in an open account and the balance is carried over and recognised. In the case that the value of the guarantees that are available to us for this reason exceeds the total amount of the pending receivables by more than 10%, at the request of the Buyer LEHVOSS shall release collateral to be determined at the discretion of LEHVOSS.
7. PASSING OF RISK
7.1. The risk shall pass to the Buyer as soon as the goods have been delivered to the carrier, leave the warehouse (this shall also apply if freight prepaid has been agreed) or, in the case that the Buyer sees to the collection of the goods, from the time at which LEHVOSS issues notification that it is ready for shipment or collection. The same shall apply if the place of delivery differs from the place of fulfilment. All shipments, as well as any return, shall be made at the Buyer’s risk. The above shall also apply in the cases in which it has been agreed that the transport expenses are to be assumed by LEHVOSS or if LEHVOSS ensures this. All of the clauses agreed on delivery only regulate the costs.
8.1. In the case of material defects, we will respond, in accordance with current legislation, to the Buyer, at our discretion, by means of remediation or replacement of the goods, if, in addition to the legal requirements, the following requirements are met:
a) Upon receiving the goods the buyer must check, within a maximum period of two working days, the goods and its packaging, according to trade practices, in terms of its kind, quantity and condition. In the case that the goods are supplied in shipping units, the Buyer must also check on the labelling of each unit that it corresponds to the order.
b) The Buyer must notify LEHVOSS in writing of the defects observed during the verification, immediately, and in any case within two business days of receipt of the goods.
c) If the Buyer does not verify the goods or does not issue timely notification of the existence of a verified or verifiable defect, it shall be understood that it is satisfied with the goods. The same shall apply to the case of incorrect supply by error, as well as if there is such a substantial deviation that the possibility of acceptance by the Buyer should be considered excluded.
d) In the case that a defect that could not be recognised appears later, even after a diligent inspection (hidden defect), this defect must be reported immediately after its verification, in accordance with the provisions of b) above. Otherwise, it shall also be considered that the goods comply with the contract.
e) If the Buyer does not provide LEHVOSS with the opportunity to verify the veracity of its objection or, at our request, does not put at our immediate disposal the goods or sample to which the objection relates, the remediation claims raised shall not be examined.
8.2. LEHVOSS reserves the right to carry out two remediation attempts. In the case that the remediation fails, or is disproportionate for LEHVOSS or for the Buyer, the Buyer may withdraw from the contract or demand a reduction in the purchase price.
8.3. The right to demand the remediation set forth in point 8.1. shall lapse one year after the delivery of the goods. In the event that a repair or replacement occurs, this shall not entail an extension of the term.
8.4. Subsequent rights, in particular, rights to compensation for damages as a result of defects of the goods or defective delivery, shall be excluded in accordance with provisions set forth in sections 8 and 9. This will apply in particular to consequential defects. Even in cases of serious negligence, LEHVOSS shall not be obliged to compensate for damages that would not have been caused if the Buyer had subjected the goods before their processing or subsequent sale to the required tests depending on the nature and circumstances of the goods.
9. LIABILITY FOR DAMAGES
9.1. In relation to damages produced in assets owned by the Buyer, including its wealth, and due to defects of the object of purchase, incorrect supply by error or packaging defects, we shall be liable for the following:
a) In the case that damages could have been avoided by complying with the Buyer’s verification obligations, any kind of liability on the part of LEHVOSS shall be excluded, unless the damage is a consequence of intentional behaviour on our part.
b) In the event that damage occurs despite the Buyer’s compliance with the verification obligations, LEHVOSS shall only be liable for any breach of contract resulting from the gross negligence of its legal representatives and its employees.
9.2. With respect to damages other than those previously specified, regardless of the cause of liability, LEHVOSS shall only be liable for them if they have been caused by wilful misconduct or by gross negligence on the part of LEHVOSS.
9.3. The cases of exemption and limitation of liability regulated in points 1 and 2 shall not apply to the extent that claims for compensation are for breach of essential obligations of the contract, the failure or defective performance of which may frustrate the object of the contract; for the assumption of a guarantee; for damages for personal injury or death and/or for liability for damages for defective products, as well as for the application of mandatory standards, as long as they were the consequence of wilful misconduct or gross negligence on the part of LEHVOSS.
9.4. In the case of the sale of samples, these samples are mere non-binding sample copies which only correspond to an approximate and indicative description of the goods. The same applies to the analysis data, unless certain values have been expressly guaranteed. The term ‘as usual’ shall always be understood as ‘approximately as usual’.
9.5. LEHVOSS is not responsible for the suitability or adequacy of the goods for the purposes intended by the Buyer, unless the achievement of a specific purpose is expressly part of the contract. The advice, information and recommendations of LEHVOSS regarding technical application are made to the best of its knowledge and understanding. Because the actual use of the product is beyond LEHVOSS’s sphere of influence, and it is not possible to foresee all of its particularities and circumstances, LEHVOSS can only provide advice and recommendations, whether orally or in writing, that are not binding in nature. In particular, the Buyer is not exonerated from the duty to check the products and goods in relation to their suitability and adequacy to the procedure and purpose intended.
9.6. Any possible claim of the Buyer shall lapse one year from delivery or, where appropriate, from the original act of damage, without prejudice to longer statutory limitation periods.
10. DATA PROTECTION
10.1 By accepting these Terms and Conditions of Sale, in accordance with current regulations on data protection, the Buyer expressly authorises LEHVOSS to incorporate the data provided as a result of business relationships into a file, of our responsibility, in order to be able to comply with the business relations. Likewise, in doing so, the Buyer accepts and gives its express consent for its data to be transferred to third parties as part of the business relations, even when said transfer implies an international transfer of data, and exclusively for the fulfilment of the purposes for which it was collected. At any time, the Buyer may exercise its rights of access, cancellation, rectification or opposition by sending its request by email to the address email@example.com.
11. PLACE OF PERFORMANCE, JURISDICTION AND APPLICABLE LAW
11.1. The place of performance is the place of the store or warehouse from which the delivery is made.
11.2. It is agreed that any discrepancy or dispute that cannot be amicably resolved shall be submitted to the jurisdiction of the courts and tribunals of the city of Barcelona, expressly waiving any alternative forum that, where appropriate, may be applicable. However, LEHVOSS may initiate legal proceedings against the Buyer at its own domicile. Likewise, both mediation and arbitration are expressly excluded for the resolution of any discrepancy or dispute that may not arise.
11.3. The contractual relationships shall be governed by Spanish legislation. The application of the United Nations Convention on Contracts for the International Sale of Goods concluded in Vienna in 1980 (CISG) is expressly excluded.
11.4. For the purposes of the interpretation of the clauses agreed regarding delivery, INCOTERMS in its current version (currently INCOTERMS® 2010) shall apply, with the exception of the provisions on the passing of risk in clause 7.
11.5. The invalidity of one or more of the clauses set forth in these Terms and Conditions of Sale shall not affect the rest of the clauses of the same. If one or more of the clauses set forth in these Terms and Conditions of Sale prove null and void or make these Terms and Conditions of Sale void, such clauses shall be interpreted as if they were replaced by others (i) with equivalent economic content, to the greatest extent possible, and (ii) that are not affected due to invalidity. In the event that the latter is not possible, they shall be replaced by the provisions set forth the applicable law, expressly excluding the application of the Buyer’s general conditions.