General Terms of Sale for EMUCA, Ltd.
ARTICLE 1 DEFINITIONS AND APPLICATION OF THESE TERMS
1.1 In the following clauses the term “Client” refers to the company that accepts these General Terms of Sale.
1.2 The terms “Contract” or “Contractual Relationship” refer to any and all agreements reached between Emuca S.A. and the Client; any modification or addition to the same; and any activity related to drawing up and executing said agreements.
1.3 These General Terms of Sale are applicable to all orders commercialised by Emuca S.A.
1.4 The General Terms of Sale hereby replace and render null and void any other general conditions, and represent the only applicable sales agreement for Emuca S.A. notwithstanding the general or particular conditions of the Client.
1.5 Any derogation or modification of these General Terms of Sale must be expressly stipulated in the terms of each particular order.
1.6 Derogations are only applicable to express orders and the Client cannot extend said terms to other past or future order.
1.7 Please contact the Emuca S.A. sales department if you have any queries or doubts concerning these General Terms of Sale.
ARTICLE 2 PARTIAL INEFFICACY
2.1 If any of the conditions stipulated in these Terms of Sale is declared null and void, the validity of the Terms as a whole will not be affected by said circumstance and the rest of the terms and conditions will remain in vigour and unaffected by the nullification.
2.2 The condition deemed legally null and void will be substituted by a new condition, or interpreted in a way which is legally acceptable and which is as similar as possible to the one which Emuca S.A. would have drawn up if it had had prior knowledge of the inefficacy of the condition in question.
ARTICLE 3 OFFERS
3.1 All offers or quotes (on prices) made or presented by or on behalf of Emuca S.A. are obligation-free and can only be considered as invitations to make a formal order.
3.2 A contract will only become binding when Emuca S.A. receives and confirms acceptance of the order from a Client. The issue and dispatch of said acceptance to the Client will constitute the formalisation of the order.
3.3 If an Emuca S.A. order confirmation is different in some way to the order made by the Client, the contract will be subject to the order confirmation unless the Client refuses said confirmation in writing within 24 hours of its reception, after which period Emuca S.A. will understand that the Client has accepted the order confirmation.
3.4 All declarations made by Emuca S.A. regarding prices, numbers, dimensions, weight or other product specifications will be made as accurately as possible but are not binding. Emuca S.A. cannot guarantee that there will be no deviations from said declarations.
3.5 Regarding orders which, due to their volume, do not require an order confirmation, the invoice will be taken as the order confirmation and will be a true and accurate representation of the contract.
ARTICLE 4 DELIVERY
4.1 Except in the case of a prior agreement by which Emuca S.A., dependent on the country or region of the order, offers paid delivery for orders above a certain amount, delivery will be EX WORKS (see INCOTERMS 2000 definition), meaning that the goods will be made available to the Client at the Emuca S.A. warehouse premises. From there, all costs and risks will be assumed by the Client. To that effect, the delivery will be understood as completed in the moment that the ordered goods leave the Emuca S.A. warehouse.
4.2 From the moment of the delivery, including the exact moment it occurs in accordance with the above clause 4.1, the supplied goods and inherent risks regarding the same are the sole responsibility of the Client.
4.3 Any delivery date provided will not be enforceable as a deadline. If the Client claims that a delivery is overdue or that the delivery date has not been met, Emuca S.A. will be obliged to rectify or confirm the estimated date of delivery. If Emuca S.A. confirms that the estimated date has not or cannot be met, a reasonable period of time will be granted to allow for delivery.
4.4 If the reasonable period of time allowed for delivery is not met, the Client will not have any right to compensation. Nor will the Client have the right to terminate or send notice of termination of the contract unless the delivery becomes so far overdue that it would be unreasonable to oblige the Client to uphold their side of the contract. In this case, the opposing party will have the right to terminate the contract only as strictly necessary, and only in relation to the part of the contract directly affected by the delay in the delivery period.
4.5 Emuca S.A. has the right to realise partial deliveries at any time.
4.6 Notwithstanding the above, Emuca S.A. may deliver products (or order them to be delivered) to an address provided by the Client.
4.7 When goods are delivered to an address provided by the Client, the cost of transporting the products or moving them within the company’s premises or industrial plants is not included in the price. Any costs related to these processes will be assumed by the Client.
4.8 The Client is obliged to accept the products in good faith and according to the contractual agreement. If the Client refuses goods or delays reception of the purchased products, Emuca S.A. may:
a) Demand that the Client meet their obligations and pay the agreed price or any pending amounts plus and interest accrued for delayed payment. Simultaneous to, but notwithstanding the above, Emuca S.A.: may place the goods in storage or deposit, informing the Client via reliable means that said goods are available to them. Any costs arising from said storage or deposit due to the Client’s non-reception of the goods for any reason will be assumed by the Client.
b) Terminate the contractual agreement. Emuca S.A. will then be permitted to transfer the affected goods to third parties.
c) Notwithstanding the above, Emuca S.A. will have the right to compensation for any damages arising from the above circumstances.
4.9 If the Client does not pay for or receive the goods in a timely manner, they will be automatically held in breach of the contract with no requirement for notice to that effect. Emuca S.A. will then have the right to place the products in storage at the Client’s risk and cost, or to sell the same to third parties. The Client will be obliged to satisfy the agreed purchase price plus any accrued interest or costs, including storage costs, as compensation. The amount of this compensation will be reduced accordingly when the sale of the products to a third party takes place.
4.10 Emuca S.A. has the right to delay new deliveries until the Client has met all their obligations to pay any invoices pending to Emuca S.A.
ARTICLE 5 TRANSPORT RISKS AND COSTS
5.1 If Emuca S.A. delivers the goods to an address provided by the Client, they will be delivered carriage paid, and the cost of carriage will be charged to the Client in their invoice. Emuca S.A. will therefore be responsible for hiring the required transport for the delivery of the products but will not be held responsible for said transport or any damages that may occur to either the products or third parties from said transport.
5.2 Emuca S.A. will charge the Client for the transport costs as quoted by the transport agent for the delivery of the goods.
5.3 Furthermore, with regards to said transport, the Client is obliged to:
a) Obtain any required license or authorisation for export and, if applicable, the transit of the goods in question in another country.
b) Assume all risks of loss or damage of the products referred to in the contractual agreement from the moment in which they leave the Emuca S.A. warehouse.
c) Pay for any additional costs which arise if the transport does not arrive within the stipulated period, or if the Client cannot accept the goods or has not provided sufficient information or indications.
ARTICLE 6 CLAIMS OR COMPLAINTS
6.1 The Client must inspect the products as carefully as possible immediately upon arrival. Any claims or complaints regarding defects must be sent to Emuca S.A. in writing within a maximum period of seven days from delivery AS LONG AS THE INCIDENT IS RECORDED on the TRANSPORT AGENT’S delivery note. If said record is not available, the PERIOD FOR CLAIMS WILL BE 24 HOURS from delivery. Claims or complaints based on internal faults of the item sold must be made within 30 days of the delivery.
6.2 If Emuca S.A. considers the claim to be justified, Emuca S.A. will be obliged to repair the defect/s or replace the defective goods at their discretion and the Client will not have the right to claim any further compensation whatsoever.
6.3 Upon discovery of any defect, Emuca S.A. may request that the Client immediately halt the sale or delivery of the affected goods to third parties. The Client will not have the right to any claims regarding products for which Emuca S.A. cannot verify the cause of the claim.
6.4 The Client may not present any claim or complaint against Emuca S.A. if they themselves have not met any of their obligations to Emuca S.A. The Client will help Emuca S.A. in any way possible to carry out investigations regarding their claims.
6.5 The Customer may not return the products before Emuca S.A. has given its written consent. Transport will always be carried out at the Customer’s expense and risk. Likewise, said return procedure will carry a minimum cost of 25£. Only if the correct and legal process for claims and complaints has been made will Emuca S.A. pay the reasonable costs of return, and only when said costs receive prior approval from Emuca S.A. Specifically, when products which at the date of the claim are still for sale by Emuca S.A. and whose return occurs within a period of 3 months from delivery, the amount of the credit issued may reach the full amount of the purchase. If the return occurs more than 3 months after delivery, the credit issued may reach 50% of its value. In either case, Emuca S.A. reserves the right to charge £3 per box handled if the products does not arrive back in good condition.
6.6 Emuca S.A. will not be held responsible for any hypothetical claims deriving from misuse of products, or any products which have been modified or handled without the express written consent of the company. The Client will be responsible for the sale of such products acquired from Emuca S.A. and will be obliged to inform their customers of the circumstances and use of the products, their limitations and, if applicable, the non-approved traffic of the same, in order to ensure that Emuca S.A. is freed from any liabilities arising from claims regarding said products.
ARTICLE 7 TAXES, PRICES AND COSTS
7.1 Emuca S.A. can, among other things, make changes to prices if, in the interim between the moment the offer was made and the moment full payment is received, there is a significant change to costs regarding, for example, the exchange rate, salaries, primary materials, semi-manufactured goods, packaging material, etc.
7.2 Prices given by Emuca S.A. do not include VAT or other taxes, nor do they include any associated costs. All amounts not included in the quoted price will be payable by the Client.
7.3 If not otherwise indicated, the prices given are EX WORKS, as stipulated in clause 4.1.
7.4 Prices given are always per package, including full packaging for orders over 100 Euros. If the packaging is broken £3 per handled box will be added and for orders over £100, there will be an additional administration charge of £15. Please consult your sales rep for cut-to-measure or otherwise manipulated products. Minimum order required for free delivery is £500.
7.5 We have incorporated the Express service for the deliveries you need in a special time. The conditions are:
• Next day before 10:30 a.m. with an additional charge of £30.
• Next day with an additional charge of £20.
The rest of deliveries must to be sent in 48-72 hours.
ARTICLE 8 PAYMENT
8.1 Unless otherwise specified in writing, payment will be made in accordance with the terms included in this document, via bank transfer at the time of placing the order.
8.2 Emuca S.A. reserves the right to demand a certified bank cheque for large amounts.
8.3 Emuca S.A. may require the Client to provide guarantees of payment such as bank guarantees, even after the sales agreement has been formalised. If necessary, Emuca S.A. may delay delivery of the goods until said guarantee has been received.
8.4 If an invoice is not paid by its due date Emuca S.A. will demand the immediate payment of all invoices pending payment. Said payment must be made before any confirmed order is delivered. Emuca S.A. can also request that the Client return all delivered goods which have not been paid for by their due date, without any requirement to notify the Client of said demand by certified mail. Emuca S.A. can also recover the goods held by the Client or demand direct payment for the full amount of the same from the Client.
8.5 The due date of one or several invoices is understood to represent the Client’s obligation to satisfy payment of the same without the need for any other formal notification. Consequently, penalties for delayed payment will be incurred from the due date of the invoice/s onwards. The Client will be liable for any accrued interest on delayed payments in accordance with the established legal rates for the same. If on the agreed date, stipulated on the invoice, payment is not received, the Client’s debt will increase according to costs associated with obtaining the payment due.
8.6 The Client will not be able to cite a claim made by them as a reason to retain all or part of a payment due on any invoice/s. Nor will they be able to propose or pursue compensation for the same. No claims on goods deliveries will result in the non-payment of one or several invoices unless undeniable proof of faultiness is provided by the Client and approved by Emuca S.A. before the invoice becomes due. If legal action is taken regarding an invoice, the claim must be made in writing and send by certified mail with proof of receipt to Emuca S.A. within the legally established period for such transactions. Once said period has elapsed, Emuca S.A. will be relieved of all responsibility regarding the goods in question.
ARTICLE 9 RESERVATION OF RIGHTS OF OWNERSHIP
9.1 Notwithstanding the other Terms of Sale, legal ownership of the goods will not be transferred to the Client until they have been paid for in full and by the agreed means. Until that moment, legal ownership is reserved for Emuca S.A. and the goods are merely held in deposit by the Client.
9.2 The Client must store any goods held in deposit in such a way that they are clearly identified as being the exclusive property of Emuca S.A. If any doubt arises regarding the existence of the reservation of rights of ownership for a particular item, due to the incorrect identification of the same by the Client, it will be understood that the item in question is under said reservation.
9.3 The Client is obliged to take out and maintain insurance policies which cover any goods held in deposit against any and all risks of loss or damage.
9.4 If payment for the goods is defaulted on or delayed by the Client, Emuca S.A. has the right to remove the goods held in deposit at the Client’s establishment, and the Client hereby grants Emuca S.A. the irrevocable right to enter their premises for this purpose.
ARTICLE 10 TERMINATION
10.1 Emuca S.A. can terminate the contractual relationship at any moment prior to its natural expiry with immediate effect and no loss of compensation for damages due, by issuing a notice of termination which will be effective from the moment it is issued:
• If the Client becomes insolvent or is not in a situation to meet its debts on their due date or, if in the course of normal business, the Client stops paying any due debts or transfers its goods to its creditors.
• If the Client defaults on any of the amounts due.
• If the Client does not meet any of its obligations or responsibilities, or if the Client delays meeting the terms and conditions set forth in these Terms of Sale or by Law.
10.2 To terminate the contractual relationship, Emuca S.A. mist sent notification to the Client by any means that provides proof of reception, and the termination will automatically be enforced. Notwithstanding the above Emuca S.A. reserves the right, even after the contract is terminated, to demand immediate full payment of all amounts owing the company from the Client, and to call in all guarantees offered as insurance for the payment that were required from the Client by Emuca S.A.
10.3 The Client hereby waives the right to claim any compensation for the termination of the contractual relationship.
10.4 Emuca S.A. has the right to recover any goods delivered. For this purpose, Emuca S.A. and its legal representatives will have to right to enter the Client’s establishment to take possession of said products. The Client is obliged to adopt any measures necessary to allow Emuca S.A. to exercise its rights. Furthermore, all invoices from Emuca S.A. which are pending payment by the Client will become due and must be paid immediately.
ARTICLE 11 LIMITATION OF LIABILITY
11.1 Subject to the rest of the clauses contained in this condition, the liability of Emuca S.A. will be expressly limited to the stipulations of Section 6 regarding claims and complaints, so that regarding the goods supplied, Emuca S.A. will never be held liable for any additional damages, including indirect damages, and will not be obliged to pay for any damages caused by the interruption of business, lost income, damages due to personal accidents, damages deriving from third party claims to the Client, or any other damages of any kind.
11.2 Subject to the stipulations of Section 10.4, liability to the Client for any cause or reason of any nature, will be limited to the amount invoiced to the Client for the products supplied by Emuca S.A. which have led to the claim or complaint. Therefore, a series of related incidents will be treated as a single incident.
11.3 Emuca S.A. will not be held responsible for damages of any nature which arise or are caused by either the use of the supplied products, or by their being inappropriate for the use the Client has given them. Emuca S.A. does not guarantee the articles or their saleability, nor that they are suitable for a specific purpose.
11.4 Emuca S.A. will not be held responsible for damages of any kind arising from the actions or omissions of staff employed by Emuca S.A., or those of other people whose services have been contracted by Emuca S.A.
11.5 The Client will compensate Emuca S.A. for any third party claims for compensation for damages relating to the goods supplied to the Client by Emuca S.A.
11.6 Emuca S.A. will not be held responsible for damages of any kind when their actions are based on incorrect or incomplete information provided by the Client.
11.7 Emuca S.A. refuses all responsibility for direct or indirect physical or material damages due to the incorrect use of any products delivered.
11.8 Emuca S.A. will provide substitutes for faulty articles at its own unquestionable discretion and only when it deems said action necessary.
11.9 Emuca S.A. reserves the right to modify the articles which appear in its leaflets at any time and without prior warning.
ARTICLE 12 FORCE MAJEURE
12.1 If Emuca S.A. cannot subscribe to (or continue subscribing to) the established commercial relationship due to permanent or temporary causes imputable to force majeure, it will have the right to fully or partially terminate the contractual relationship, with no obligation to pay compensation for damages to the other party, by sending written notification to that effect without legal intervention and without compromising its own right to receive payment from the Client for any service provided by Emuca S.A. before the situation imputed to force majeure occurred, or to suspend the execution (from that moment forward) of the contractual relationship. In the case of a suspension, Emuca S.A. ha the right to declare the total or partial termination of the contract at any point in the period of the suspension.
12.2 “Force majeure” includes all circumstances that render Emuca S.A. temporarily or permanently unable to comply with its obligations, such as (but not limited to), governmental actions, strikes and any similar circumstance which make it unreasonable to expect (or continue expecting) Emuca S.A. to meet (or continue meeting) its obligations to the Client.
ARTICLE 13 INTELLECTUAL PROPERTY, COPYRIGHT AND CONFIDENTIALITY
13.1 The Client cannot eliminate or modify any marks showing brands, commercial names, patents or other rights over the goods supplied by Emcua Ltd. including information regarding the reserved and confidential nature of the items supplied. Nor can they alter or copy the products or any part thereof.
13.2 Emuca S.A. does not accept any responsibility for infringements of third party intellectual or industrial property rights caused by modifications made to the supplied goods without the express consent of Emuca S.A.
13.3 The Client is obliged to keep all documents and/or information received directly or indirectly from Emuca S.A. from the initial contact between Emuca S.A. and the Client through to the termination of the contract and during a specified period after the same in the strictest confidentiality.
13.4 Any violation of the above CONDITION will lead to termination of the contractual relationship by Emuca S.A. for breach of the same. Also, if the Client does not meet its obligation for post-contractual confidentiality or breaches said confidentiality before undersigning the contract, they will be liable to Emuca S.A. for the sum of £10.000 through an express penalty clause.
ARTICLE 14 DATA PROTECTION
The Client must strictly meet all provisions contained within the current Organic Law on Personal Data Protection and any applicable national or international laws in vigour at the time, as well as developmental regulations regarding Emuca S.A.
ARTICLE 15 APPLICABLE LAW / CONFLICT RESOLUTION
Any dispute and/or disagreement between Emuca S.A. and the Client will be brought under the competence of the Courts of Law in the City of Basildon ESSEX, and subject exclusively to United Kingdom Law. The Client hereby waives any right to submit said disputes to any other legal body or applicable laws.
ARTICLE 16 WAIVER
If Emuca S.A. waives the right to demand that the Client complies with any obligations that they have not met, it will under no circumstances be taken as waiving the right to make claims for other future breach or incompliance.
The Client hereby declares that it has been fully apprised of the Emuca S.A. General Terms of Sale, and accepts them as an integral part of the mutual contract.