Terms and Conditions of Sale
I. General Provisions. Execution of the Contract
1. The terms and conditions for undertaking any deliveries and providing any services, including consultancy services and other additional or ancillary services (hereinafter, the “Products”), are exclusively defined and governed by the written provisions contained in these Terms and Conditions of Sale (hereinafter, the “Terms and Conditions of Sale”).
Unless any other specific contractual terms and conditions are accepted by JMA Alejandro Altuna, S.L., these Terms and Conditions of Sale apply to all current and future contracts for which the main purpose is the supply/sale of products or the provision of services. No other terms and conditions, including the terms of any order or purchase order, sent to JMA Alejandro Altuna, S.L. (hereinafter, “the Vendor”) by the Client will apply, regardless of whether or not said terms are coherent, contrary or additional to the Terms and Conditions of Sale contained in this document or any legal provisions that may be applicable, regardless of any express opposition thereto by the Client. Any communication interpreted as an offer made by the Vendor with the corresponding acceptance thereof by the Client will be expressly governed by the Terms and Conditions of Sale established herein.
2. The Vendor will be entitled to accept orders placed by the Client during a period of two (2) weeks from the receipt thereof. The contract will become effective following written confirmation of the order by the Vendor or, if said confirmation is not sent to the Client, following delivery of the Products. In the event that the Client decides to amend the order following confirmation from the Vendor in a way that expands, limits or varies the scope thereof by any means, this must be communicated to the Vendor and confirmation must be obtained from the Vendor to ensure the Vendor is aware of such a change. In such cases, the Vendor will inform the Client regarding the viability of said amendment and, if viable, will inform the Client of the new terms and conditions regarding price and deadline. Such amendments will take effect upon acceptance by the Client of the new terms and conditions. In the event that the change is not viable, the Vendor will inform the Client of this situation and process the expanded scope as a new order following confirmation from the Client. In the event that the amendment to the order consists of a reduction or replacement of certain items, the Vendor reserves the right to opt for the most convenient action with regard to its own interests. Confirmation of the order will be final with regard to the rights and obligations of the parties. In the case of immediate Product deliveries, the content of the invoice will be final and will be considered as confirmation of the order. In the event that the Client rejects these Terms and Conditions of Sale, it must clearly express its objection to the Vendor as soon as possible and always leave sufficient margin for the Vendor to cease any work, deliveries or provision of services, as the case may be, without incurring any cost whatsoever. Otherwise, the Client will be liable for any costs/expenses that may have been incurred by the Vendor.
II. Price and Terms and Conditions of Payment
1. The Vendor will issue invoices in Euros (€). Payments will be made in full and free of charge on the due date of each one of the invoices, in accordance with the terms and conditions of payment agreed between the Vendor and the Client.
2. The price of the Products (hereinafter, the “Price”) will be indicated by the Vendor. The Vendor will not accept orders for a price lower than fifty euros (€ 50).
3. The Vendor reserves the right, by means of notification to the Client before delivery of the Products, to pass on as part of the Price any increase in the costs incurred by the Vendor due to: i) any factor beyond the reasonable control of the Vendor; ii) any increase in the cost of labour or materials, including storage costs if the Products have not been collected or shipped in accordance with the Contract; iii) any change requested by the Client to the delivery dates, quantities, specifications or scope of the instructions to the Vendor; iv) any delay or additional work or materials caused by instructions, negligence or non-compliance by the Client; v) any failure by the Client to provide the Vendor with any information in a suitable and timely fashion, as well as instructions or specifications when necessary.
4. The Price does not include the value-added tax or any other taxes or tariffs that may apply, nor the costs and/or fees associated with any non-standard packaging or the loading, unloading, transport and insurance or similar costs, which, unless other specific terms and conditions have been expressly agreed between the Vendor and the Client, will be paid by the Client alongside the Price if they exist. In those cases where transport costs or other costs payable by the Client have been paid in advance by the Vendor, the Vendor is entitled to immediately invoice said costs.
5. If the Vendor increases the price of sale due to an increase in costs other than those stated above, the Client may terminate the contract by communicating its intention to terminate via written notification to the Vendor within five calendar days following receipt of the notification communicating the Price increase; otherwise, it will be understood that the Client accepts the Price increase.
6. At its own discretion, the Vendor is entitled to demand documentary credits and/or any other means of payment and/or guarantees that it deems pertinent from the Client in order to ensure compliance with the obligation to pay the Price prior to delivery of the Products.
7. In the event of a payment delay, the Vendor will be entitled to charge interest at an annual rate of eight (8) percent above the rate for main refinancing operations (minimum offer rate) of the European Central Bank (ECB) in effect at the moment in question, without prejudice to any other rights and procedures available to the Vendor under applicable law. In the event of a payment delay or when the claims of the Vendor are in jeopardy due to a significant deterioration in the solvency of the Client, the Vendor is entitled to bring forward the maturity of said claims, which will become liquid, mature and payable at that moment, regardless of the payment or guarantee period. In such cases, the Vendor may choose to only make pending deliveries subject to payment in advance or prior issue of the pertinent guarantee. All the above, without prejudice to the right of the Vendor to bring any legal action that may be pertinent.
III. Delivery. Transfer of Risk
1. Unless other specific terms and conditions are expressly agreed between the Vendor and the Client, the former may establish the forms and means of transport for the Products, albeit while considering the preferences or needs of the Client whenever the same are indicated by the latter. The Client will be liable for any costs stemming from transportation, in accordance with the provisions of section II.4 above. Nonetheless, if the Vendor assumes the cost of shipping the Products, delivery may be undertaken by a third party. The Client will ensure it has suitable equipment for the receipt or delivery of Products.
2. The risk of loss or damage to the Products will be transferred to the Client according to the specific terms and conditions agreed between the Vendor and the Client. However, generally speaking, said risk will be transferred at the moment at which the Products leave the production centre of the Vendor and are made available to the Client for collection thereof.
3. Compliance with the established delivery deadline will be subject to timely receipt by the Vendor of all the documentation that the Client must provide, the clarification of all technical issues and full timely delivery by subcontractors of the Vendor. The delivery deadline will be duly extended by any period in which said terms and conditions are not met.
4. When the Vendor has not failed to comply in any way whatsoever, it will be understood that the agreed delivery deadlines have been met from the moment when the Products have been shipped or made available to the Client for collection thereof even though delivery of the Products cannot be undertaken on time.
5. The Vendor may undertake partial deliveries, in excess or deficit, to the extent by which the same may be considered reasonable in consideration of the usual deviations in the customs sector. The pertinent considerations will apply to advance deliveries. In the case of deliveries in excess or deficit, the Price will be duly adjusted.
6. Delivery dates will be approximate in any case. Delivery of the products will take place according to the terms and conditions stated above and within a reasonable period based on the characteristics of the orders placed and other circumstances that may be applicable, albeit without the same leading to delay by the Vendor.
7. In the event that any non-compliance with an obligation of the Vendor is due to a situation of “Force Majeure”, understood as impediments or other circumstances beyond the reasonable control thereof, such non-compliance by the Vendor will be excused and the delivery date will be extended by the duration of the situation of Force Majeure and the consequences thereof. Among other things, situations of Force Majeure include: natural disasters or catastrophes, such as epidemics, nuclear accidents, fires, floods, typhoons or earthquakes; actions or omissions by civilian or military government authorities, such as currency restrictions, withdrawal or suspension of export or import licences, governmental orders of overarching priority, secondments or restrictions on the use of materials or labour; wars (declared by the government or other means), civil revolts, sabotage or revolutions; terrorist acts, strikes or blockades; lack of raw material or power supply; machinery breakage or other interruptions to operations. In such cases, the Client undertakes to negotiate a suitable amendment to the Contract with the Vendor. In the event that the amendment made to the Contract due to a situation of Force Majeure is shown not to be profitable for the Vendor, the Vendor may unilaterally terminate the Contract without any compensation payable to the Client whatsoever.
8. Without prejudice to any prior terms and conditions established by these Terms and Conditions of Sale or current legislation, the Client may only terminate the Contract on the grounds of delay when each and every one of the following conditions are met: i) said delay was caused culpably and exclusively by the Vendor; ii) said delay exceeds four (4) weeks from the scheduled date of delivery; iii) the Client has notified the Vendor in writing of its intention to terminate the Contract; and iv) the Vendor has been granted an additional period of reasonable duration necessary for compliance with said Contract but has failed to deliver the Products.
9. If shipments or deliveries are delayed upon request from the Client or for another reason caused by said Client by more than fourteen (14) calendar days following notification from the Vendor regarding availability of the shipment, the Vendor may charge storage costs to the Client for each successive month at the rate of 0.5% of the price of the Products.
IV. Reservation of Intellectual and Industrial Property Rights
1. The Vendor reserves (beyond delivery of the Products) all intellectual and industrial property rights (copyright, patents, etc. without exception) and any other exclusive rights over the Products, as well as the rights over any documentation, drawings, aids and similar products that may have been delivered to the Client.
V. Descriptions, Samples and Promotional Material
1. All those drawings, specifications and advertising that may be distributed or delivered by the Vendor and any description, detail or illustration found in a catalogue of the Vendor are published for the sole purpose of offering an approximate idea of the Products described and will not form part of the Contract, nor will the Client base themselves on the same.
2. Any spelling mistake, copy error or other mistake or omission in a catalogue of the Vendor, quotation, price list, offer acceptance, order confirmation, labelling, packaging, invoice or other document or information provided by the Vendor may be corrected thereby, without liability vis-a-vis the Client, at any time either via a public rectification, via publication of said correction on the website of the Vendor or via written notification addressed directly to the Client, and said correction will become immediately binding for the Client.
3. The Contract will not be sale by sample in nature unless the Vendor expressly states that the Contract will be sale by sample in the Order Confirmation.
VI. Specifications
1. As the case may be, the Client will be responsible for paying and conducting the necessary tests to ensure that the Products meet the specifications indicated by the Vendor (or specifically agreed with the Vendor) and that the same are of satisfactory quality and fit for purpose.
2. The Vendor will deliver the Products that it manufactures according to its own specifications (under the requirements it deems appropriate based on its experience in the sector and market standards, except those specifically agreed with the Client) and will not be liable in the event that the same are not fit for the purpose intended by the Client. The Client will be liable for any adaptation of Products ordered from the Vendor to the purposes intended by the Client.
3. The Vendor reserves the right to make any necessary changes to any requirement that has no material impact on the quality or performance of the Products, or any material changes to the Products deemed necessary by the Vendor for compliance with the safety regulations set by current legislation. The Vendor may not be held liable for compliance by the Products with legally established safety requirements if the specifications for said Product have been provided and/or drafted by the Client or amended by request from the Client.
VII. Returns and Cancellations
1. The Client may return any defective Products, damaged Products (provided that the damage can be attributed to or was caused by the Vendor) or Products not ordered within 30 calendar days, and the Vendor will pay the costs of return, replacement and refund of the Price, as the case may be.
2. If the return is a result of circumstances beyond the control of the Vendor (e.g. incorrect order), the Client must pay the costs of return and must also pay the Vendor a penalty equal to 15% of the Price of the returned Products.
3. Without prejudice to the above, the Vendor may refuse to accept return of the Products, including non-standard Products, customised Products or Products manufactured according to specific instructions from the Client.
4. The Client may cancel its orders via written notification to the Vendor within a period to be defined according to the specific terms and conditions of each order and that, in any case, will be a reasonable period. By way of example and not exclusively in any way, this will be understood as follows: i) for generic or standard orders: sufficiently in advance of the date for shipment/dispatch/delivery of the Products; ii) for non-generic or non-standard orders, custom orders or orders requiring specific procurement or assembly: sufficiently in advance of the date on which the Vendor may have begun to work on manufacture/assembly or may have procured supplies for said purpose. In the event that the Client does not notify the Vendor of the cancellation within a reasonable period, the Vendor reserves the right to refuse cancellation of the orders and, as the case may be, claim any and all costs from the Client, without exception, that it may have incurred up to the date on which the notification of cancellation was received.
5. Under no circumstances will cancellation free the Client from its obligation to pay the Vendor the Price of the Products that, at the date of notification of cancellation, may have already been shipped, sent or delivered and are unaffected by the request for cancellation (in cases of orders made up by various deliveries).
VIII. Liability for Defective Products or for Issues tied to Ownership of the Products
1. Products will only be considered defective when, at the moment of risk transfer, they have specifications that are clearly different from the specifications indicated by the Vendor or the specific specifications agreed with the Client. Nonetheless, the Vendor reserves the right to swap the raw materials used in the Products for other raw materials that are equally suitable in the event that unforeseen circumstances lead to a higher cost of the raw materials initially intended for use. The Client waives all other express or implied guarantees besides the guarantees expressly indicated in the Contract, including the guarantees of marketability or suitability for a specific purpose and the suchlike, among others. The Client declares knowledge of the specifications of the Products supplied by the Vendor and will therefore be solely liable for the suitability or fitness thereof for purpose, marketing, etc. beyond the Kingdom of Spain. Furthermore, the Vendor will not be liable for: (a) defects caused by factors beyond its control, such as incorrect or negligent handling, excessive voltage, the use of unsuitable operating equipment or natural wear and tear; (b) failure to follow the instructions contained in the respective manuals; or (c) minor defects.
2. Without prejudice to any exclusion or reduction of liability for the Vendor under applicable legislation, delivered Products will have a title deficiency when the same are not free of potential rights or claims held by third parties at the moment of risk transfer. Without prejudice to other legal requirements, the rights or claims of third parties based on industrial or intellectual property will only be considered as a breach of the Contract insofar as that the industrial or intellectual property is registered and has been made public, thereby impeding standard use of the Products by the Client.
3. In the event that non-compliant Products or Products with title deficiencies are delivered, the Vendor may choose to repair any defect, manufacture new Products or replace any Products or part thereof in breach of the Contract, under the condition that the non-conformity is due to circumstances that existed prior to the transfer of risk. The remedy of any defect or the replacement of any delivery will be undertaken at all times according to good faith and without the recognition of any legal obligation whatsoever unless the Vendor expressly states otherwise. In accordance with the above, the Vendor may opt to refund the Price to the Client in the event of excessively costly or impossible remedies or repairs. In any case, termination of the Contract on such grounds will not imply the existence of any compensation payable to the Client whatsoever.
4. To the extent to which the Vendor may have incurred costs or expenses, it will be entitled to compensation in the event that a defect notified by the Client is subsequently determined (a) not to exist or (b) to be due to factors beyond the control or liability of the Vendor.
5. Any claim from the Client relating to the rectification of non-compliant Products, specifically transport costs, travel costs, labour costs and material costs, will be excluded if the same stems from relocation of the delivered Product to a location other than where the Client is engaged in its activity, unless this represents the contractual use.
6. The term of liability for defective products will be twelve (12) months from the date of transfer of risk unless stated otherwise in the order confirmation and any action brought against the Vendor based on a defect in the Products will expire after said period. For clarification, no new period of liability for defective products will begin for repaired or replaced Products.
7. The Vendor will have no liability if the Client fails to duly provide written notification of a defect or a title deficiency within the period of liability for defective products. Nonetheless, in the event that the Client discovers a defect or deficiency within said period, it must notify the Vendor within eight (8) calendar days either i) from the discovery thereof or ii) after the Client would have had to discover it. If necessary, the Client will be required to verify that the delivered Products are free of defects and meet the specifications indicated by the Vendor (or specifically agreed with the Vendor). Any objection relating to the characteristics or quantity of Products delivered must be notified to the Vendor, indicating the order dates and the invoice numbers.
8. The Product descriptions offered by the Vendor must be strictly taken into consideration. The Products must be used and stored in accordance with the specifications from the Vendor. The Vendor accepts no liability whatsoever for uses and handling of the Products that do not comply with its specifications.
IX. Warranty
1. The Products will be subject to a warranty of twelve (12) months.
2. Any product, handling or service that has not been exclusively supplied and/or provided by the Vendor is excluded from any warranty.
3. Any product handled by persons other than the Vendor will be excluded from any warranty.
4. Any Products with damage stemming from misuse by the Client (or third parties) or from a lack of due maintenance and care will also be excluded from any warranty.
X. Limitation of Liability
1. The Vendor will only be liable for malicious acts. Under no circumstances and regardless of the legal grounds (contractual or extra-contractual or by virtue of any other legal scope), will the Vendor be liable to the Client for lost profits, loss of use, loss of data, capital costs, the cost of lack of operations, the cost of replacement goods, damage to property whether caused by the Products or not, any damages or loss stemming from said damage, any incidental, indirect or emerging special damages, or any of the above incurred by third parties. Under no circumstances will the total liability of the Vendor exceed 100% of the Price of the contract.
2. The aforementioned limits on liability will apply in cases of gross negligence or wilful misconduct by any other party acting on behalf of the Vendor, including but not limited to its subcontractors, agents, advisors and employees.
3. Said limits on liability will also apply to the subcontractors, agents, advisors, directors and employees of the Vendor.
XI. Termination of the Contract
Besides non-compliance with the provisions of the contract between the parties, the contract may also be terminated on the grounds governed by these Terms and Conditions of Sale.
In the event that the Client fails to comply with any of its obligations or it enters or may foreseeably enter a situation of insolvency, the Vendor may terminate the contract by means of written notification to the Client, suspending all supply or delivery of Products. Notwithstanding such contractual termination, the Vendor will be entitled to claim from the Client, as the case may be, the part of the Price to which it may be entitled for Products delivered and for which payment has not been received.
XII. Safety of the Products and Civil Liability for Defective Products
1. In order to guarantee a high level of safety for the Products, the Client must duly inform the Vendor of any damage or other abnormalities observed with regard to its Products.
2. In terms of defence against civil liability claims regarding defective products brought against the Vendor, the Client will back the Vendor in reasonable terms. Furthermore, the Client will provide all pertinent documentation regarding the method in which the Products from the Vendor are processed or used, as well as information about the proportion of Products from the Vendor in the product or service provided by the Client.
XIII. Intellectual and/or Industrial Property
1. The Vendor supplies Products that do not breach intellectual and/or industrial property rights of third parties in accordance with the provisions of these Terms and Conditions of Sale and applicable legislation. The Vendor will not be liable to the extent by which the Client may use the Products in any way without breaching the intellectual and/or industrial property rights of third parties. The Client must independently analyse whether the planned use of the Products constitutes a breach of the intellectual and/or industrial property rights of third parties. The Client must duly inform the Vendor of any such breaches.
2. Any claims brought by the Client against the Vendor due to a breach of intellectual and/or industrial property rights of third parties will be rejected if the breach stems from a non-compliance by the Client or resulted from a specific request made by the Client.
XIV. Lack of Transfer, Compensation or Right of Retention
1. The Client may not transfer any rights stemming from the Contract unless the Vendor has provided express written authorisation to do so.
2. The Client may only compensate the sum of any claims following agreement with the Vendor. This will apply to any right of retention for the Client.
XV. Technical Consultancy
Provided that this is stipulated in the Contract, the Vendor will provide any written or spoken consultancy regarding the technical application of the Products, including the corresponding experiments, to the best of its knowledge and understanding. Such consultancy will only be considered as non-binding guidance, and the same will apply to any possible intellectual property rights of third parties. The above will not free the Client from its obligation to conduct the due testing of Products delivered by the Vendor with regard to whether or not the same have the specifications indicated by the Vendor (or specifically agreed with the Vendor). Any application, use and, as the case may be, processing of the Products are beyond the control of the Vendor and the Buyer is exclusive liable for the same.
XVI. Terms and Conditions of Export
1. When the Products are supplied for export beyond Spain, the provisions of this Clause will apply (subject to any condition agreed in writing between the Client and the Vendor) and will remain in effect during any conflict stemming from any other clause and condition established in these General Terms and Conditions of Sale.
2. The Client will be solely liable for compliance with any regulations (of a technical nature, environmental nature, on approvals, etc., without exception) governing the Products in the country of destination with regard to the export thereof (including, where necessary, the payment of tariffs and taxes), the import thereof into the country of destination, and the payment of any applicable amount or export fees or taxes levied on the same. The Client must (and will be liable for): i) inexorably notify the Vendor of any obligation the Vendor may have under such legislation or regulations; and ii) pay or reimburse to the Vendor any associated costs that the Vendor may have to pay as a result.
3. The obligation of the Vendor to deliver the Products will be subject to issue of the required export licences and the lack of any other restrictions stemming from any regulations governing the control of exports currently in force.
4. The Client undertakes to comply with all regulations governing the control of exports that may be applicable and established by the competent national authorities. Specifically, the Client undertakes to refrain from exporting or re-exporting, either directly or indirectly, the Products to any country where said export may be prohibited under the aforementioned regulations or under any international provisions. Strict non-compliance by the Client with international regulations and other provisions governing embargoes, sanctions and import/export will be considered sufficient grounds for immediate termination of the contract by the Vendor.
5. Upon request by the Vendor or in the event that applicable legislation so requires, the Client must provide the Vendor with a duly completed and signed end-user certificate.
XVII. Competent Jurisdiction and Applicable Legislation
1. The Courts and Tribunals of the registered address of the Vendor will hold exclusive competency over the resolution of any conflict stemming from or related to the Contract.
2. The Contract and all claims stemming from or related to this Contract will be governed by the law of Spain.
XVIII. Partial Ineffectiveness. Written Form
1. The total or partial ineffectiveness of any Clause will have no impact on the enforceability of the remaining provisions and the Contract as a whole. Any clause lacking total or partial enforceability will be replaced by another that, to the maximum extent possible, fulfils the economic purpose of said provision lacking total or partial enforceability.
2. Amendments to the Contract will only become valid when agreed upon in writing.
XIX. Personal Data Protection
1. Pursuant to data protection legislation, the identification details, DNI number or equivalent identity document, the position and the signature of the parties signing the contract will be processed for the purpose of managing contractual relations, and the processing of said data is hereby authorised under the aforementioned conditions.
2. The legal grounds for processing said data lie in the contract signed between the parties. Hence, the personal data will be kept until such time as said contract naturally expires or is legally terminated. The data will be kept, duly blocked, for as long as liabilities may stem from performance of the contract, as well as for compliance with other legal obligations.
3. Said data will not be transferred to a third country or international organisation nor will they be shared with third parties unless required under a legal obligation or such action becomes necessary as a result of performing the contract.
4. Furthermore, the Vendor states that the processing of personal data for which the Client is liable and to which it may gain access as a result of performing the contract will be undertaken according to the strictest confidentiality and in full compliance with the obligations and guarantees established by both the GDPR and the Spanish Personal Data Protection Act (LOPD), and that it will process any personal data that may be shared with it for the purpose of managing the contractual relationship that exists between the parties.
5. The Vendor will adopt all those measures of a technical and organisational nature necessary for guaranteeing the security of the personal data and preventing the unauthorised alteration, loss, processing or access thereof, and also undertakes to refrain from sharing the personal data of data subjects with third party persons or entities except in those cases provided for by law and with all due guarantees.
6. Data subjects may exercise the rights granted to them by applicable regulations governing data protection at any time (access, rectification, erasure, limitation, portability, opposition and to not be the subject of automated individual decisions) by providing a copy of their DNI or equivalent identification document and stating the right they wish to exercise, addressing their request to the registered address of the data controller and including “Personal Data Protection” as the subject.
