NUEVA Condiciones de venta

GENERAL TERMS AND CONDITIONS OF SALE OF BARBERÁN S.A*


*Concerning the sale of a model BIJ inkjet printer, the applicable terms and conditions shall be those included in the document “GENERAL TERMS AND CONDITIONS OF SALE AND GENERAL TERMS AND CONDITIONS OF SALE SPECIFIC FOR MODEL BIJ INKJET PRINTERS OF BARBERÁN S.A.”, and concerning a spare part sale, the applicable terms and conditions shall be the “TERMS AND CONDITIONS OF SPARE PART SALE”


1. PREAMBLE


1.1. These General Terms and Conditions of Sale have been drafted following the recommendations of AFEMMA (Spanish Association of Machinery for Wood) and non-profit European association EUMABOIS.
1.2. The Agreement to be executed by and between BARBERAN, S.A. (“the seller”) and the purchaser of one of its products (“the machinery”) shall be a sale agreement, notwithstanding any additional services which, as the case may be, the purchaser (“the purchaser”) and the seller may freely agree upon.
1.3. The signature of the established order and the start of manufacturing works without any protest from the purchaser shall entail the latter’s acceptance of these General Terms and Conditions. The seller shall duly inform the purchaser of these Terms’ existence and shall have them available for the purchaser at its facilities and in its website, www.barberan.com.



2. AGREEMENT EXECUTION


2.1. The sale agreement shall be considered executed when the seller receives the order for the machinery signed. The order implies the acceptance of the seller’s previous quotation and binds the purchaser to pay the amount indicated therein, as down-payment of the price (“the advance”), in addition to the obligations deriving from the sale agreement.
2.2. The seller’s initial quotations (should there be more than one), the purchaser’s quotation requests and the correspondence between the parties shall be a relevant background to interpret the agreement whenever necessary.
2.3. In order to be valid, any change, alteration or amendment to the sale agreement shall require written confirmation by a designated person with sufficient power of both the seller and the purchaser.
2.4. The purpose of the agreement is the sale of the machinery. It is understood that any other service, such as the fitting, set up and tune-up or the supply of materials, is not included, unless the purchaser has requested any of such accessory services and the seller has consented expressly and in writing to provide them. The provision of accessory services, as the case may be, shall not alter the legal nature of the sale agreement.



3. PLANS AND DESCRIPTIVE DOCUMENTS


3.1. The weights, dimensions, capacities, prices, performance and other details indicated in catalogues, brochures, notices, advertising prints and price lists of the seller are merely illustrative and shall not have a mandatory or binding nature, unless the quotation accepted expressly refers to them.
3.2. The plans and technical documents for the full or partial manufacturing of the machinery, sent to the purchaser before or after the sale agreement execution, will remain the exclusive property of the seller and may not without its authorisation be used by the purchaser, copied, reproduced, transferred or disclosed to third parties.
3.3. At the purchaser’s request, and upon the agreement execution, the seller shall provide the purchaser with illustrations and drawings other than those relating to the machinery manufacture, but sufficiently detailed to allow the fitting, commissioning, use and maintenance of the machinery.



4. PACKAGING


4.1. It shall not be included in the quoted prices.
4.2. It will be sufficient to avoid machinery damage upon transportation to its destination.
4.3. It may not be returned to the seller.



5. CONTROL, TESTS AND DELIVERY CONTROL


5.1. Once the seller has received the advance, the purchaser shall be entitled to examine and supervise the machinery manufacture process, for which purpose, upon agreement with the seller concerning the date and time, the purchaser may pay a visit to the seller’s facilities to examine such process.
5.2. In such visit, the seller shall provide to the purchaser any relevant explanations and shall respond to any doubts and issues which may arise concerning the purchased machinery manufacture process.
TESTS AND DELIVERY
5.3. Reception tests shall always be performed at the seller’s site during normal working hours. Should the technical specifications not be specified in the agreement, the tests shall be performed in accordance with the practices usually followed by the seller.
5.4. Once the manufacture process is completed, the seller shall summon the purchaser to perform the operation tests. Once the tests have been completed, the parties shall sign an acceptance protocol, in which the seller shall record, as the case may be, any observations or any reasons preventing, in its judgment, the acceptance and delivery. Lacking any indication, it shall be understood that the machinery works satisfactorily, that the purchaser has understood the use instructions and that the formal delivery from the seller to the purchaser has taken place.
5.5. Should the purchaser not be willing to attend the tests, or not attend the appointment without justification, it may request to be sent a report with the outcome of the tests. After 48 hours, should there be no objection to the report, it shall be understood that the machinery is compliant, and there shall be no other possibility of making claims or requests to the seller, except anything deriving from the guarantee under section 10.
5.6. Unless specified to the contrary, any expenses incurred for tests shall be borne by the seller, except for the purchaser representatives’ personal expenses and any material that both parties consider necessary by mutual agreement.
5.7. Upon delivery, the purchaser shall settle the price agreed, net of the amount paid as an advance.
5.8. Should the parties have agreed on any accessory services, such as fitting, tune-up and set up at the purchaser address, upon provision of such services a commissioning protocol shall be signed, for which the provisions under 5.4 shall apply. In any case, the fact that the commissioning protocol is signed or not shall not affect the delivery, which in any case shall have taken place in accordance with the acceptance protocol. The purchaser, in particular, may not limit or condition in any way whatsoever the purchase effectiveness (which shall render all its effects) to the outcome of the commissioning protocol.
5.9. Should it be so specified in the quotation, after the tests, the purchaser –with any technicians he may designate– shall be entitled to receive a training at the seller’s site.



6. RISK TRANSFER AND TRANSPORTATION


6.1. Risk shall be transferred to the purchaser upon delivery, as per sections 5.4 and 5.5.
6.2. The seller shall indicate to the purchaser the machinery delivery date, so that the purchaser takes delivery of it. Such communication shall be made by any means, although preferably in writing, with sufficient prior notice so that the purchaser may take the measures which are usually necessary in those circumstances. Transportation and insurance shall be borne by the purchaser, unless agreed otherwise.



7. PRICES


7.1. Prices are net for the machinery ex-works delivery. Any accessory expenses, especially for transportation and insurance, shall be borne by the purchaser, which shall also bear any taxes accrued to the seller.
7.2. Unless otherwise agreed in writing, commissioning expenses (should this accessory service be contracted), as well any expenses for subsequent repairs, shall be borne by the purchaser, save as provided concerning the guarantee term.



8. DELIVERY TERM


8.1. The delivery terms for the machinery shall start on the later of:
a) The agreement execution date, as per section or term 2.
b) The date on which the seller actually receives the advance.
8.2. Any delay by the purchaser in the supply of elements, information or documentation which may be necessary for the order execution (start of manufacture) shall discharge the seller of incurring in non-compliance.
8.3. Furthermore, the delivery term shall be suspended upon the occurrence of any hindrances that are not under the seller’s control, either at the seller’s own working sites, at the purchaser’s site or at third-party sites when relevant. Such hindrances include but are not limited to the following ones: epidemics, social action, war, revolution, service disruptions, accidents, labour conflicts such as strikes, delayed, defective or very complicated supply of raw materials and semifinished products, unforeseeable price rise of such raw materials or semi-finished products, waste of important parts, official measures, catastrophes and any other which may be assimilated to the abovementioned.
8.4. Unless expressly agreed, no penalties for non-compliance with the delivery term by the seller shall be admitted.
8.5. Should such penalty be agreed upon, the purchaser shall be entitled, upon having made a claim in writing and with a reasonable prior notice, to the penalty enforcement, unless it may be inferred from the existing circumstances that the purchaser has suffered no harm whatsoever.
8.6. The penalty agreed for non-compliance with the delivery term may not be over 0.25% for each week of delay, with a maximum of 5% of the purchase price amount. Should the delivery term exceed six months, the first four weeks shall be exempted from penalty. The penalty agreed shall exclude any other damage claim, as well as the agreement termination.



9. PAYMENTS


9.1. Payments shall be understood to be in Euro, unless a different currency is specified.
9.2. The advance shall not constitute a deposit authorising the parties to terminate the agreement, it rather has a confirming nature of the executed purchase.
9.3. The purchaser may not unilaterally withhold or reduce the payments due to claims and demands filed, neither on account of debit notes, even if they have been acknowledged and accepted by the seller. The payments may also not be unilaterally amended due to lack of accessory parts or to subsequent works performed by the seller.
9.4. In case of delay in the compliance of the payment obligations agreed, the seller may charge to the purchaser the relevant interests in arrears, which shall be calculated at the current three-month Euribor rate plus 3 points.
9.5. Should the delivery of the machine occur before the purchaser has paid the price in full, such machinery shall legally remain in retention of title until the purchaser settles the full amount of the price agreed. In case of delay by the purchaser for more than a reasonable term, upon demand in writing, the seller may choose to terminate the agreement, recover the ownership of the machinery and claim from the purchaser any damages endured. The seller may withhold as the case may be the price received on account of the damages endured, when these are higher and there is an evidence of their actuality.
9.6. Should deferred payment terms be agreed with the purchaser, the failure to settle two of the terms shall result in all others being considered due and immediately payable.
9.7. In case of temporary receivership, bankruptcy, insolvency or meeting of creditors of the purchaser, and should the purchaser not offer the necessary guarantees for the assurance of its obligations, the seller may also terminate the agreement and recover the ownership of the machinery.



10. GUARANTEE AND ASSISTANCE


10.1. The seller shall be bound to correct any operation defect coming from any design, material or manufacture flaw, with the limitations set forth by the provisions below.
10.2. This obligation concerns only the guarantee term, that shall cover defects originating within the year following the machinery delivery, for a maximum eight-hour daily use. In any case, travel and maintenance expenses of the technicians transferred shall be invoiced to the purchaser, as per the seller’s official rates.
10.3. Any repairs made during the guarantee term shall not extend such term, except concerning renovated or replacement parts, which shall be guaranteed under the same terms and conditions as the original machinery and for a one-year guarantee term.
10.4. The seller’s responsibility shall only be incurred for flaws arising in the operation conditions foreseen in the agreement and as long as the machinery has been correctly used. It shall not apply to any defects the cause of which is subsequent to the delivery (and unconnected to the seller), neither to cases of incorrect use, incorrect set up by the purchaser, changes without the seller’s written consent, inadequate repairs made by the purchaser or third parties or normal wear and tear.
10.5. Since the seller’s machinery is a technologically advanced product with a sophisticated operation, the purchaser accepts that, for correct operation, it shall be essential to follow the seller’s instructions and invest in the adequate training of its operators. Incorrect operation or non-operation due to the purchaser’s failure to comply with such requirements may never be attributed to the seller.
10.6. Concerning the parts, components or pieces of the machinery not manufactured by the seller, the seller’s responsibility shall be limited to the manufacturer’s guarantee.
10.7. If a machinery is manufactured by the seller according to the construction specifications, drawings or models provided by the purchaser, the seller shall not be liable for the construction technical value or the operation of the whole, but for the fact of having performed it in observance of the purchaser’s indications. Should industrial property rights be infringed in such cases, the purchaser shall take charge of any third-party claim, duly indemnifying the seller.
10.8. Repair works, as well as any amendments or constructions performed by the seller in used or third-party manufactured products, shall not be guaranteed.
10.9. Replaced defective parts shall be at the seller’s disposal.
10.10. It is expressly agreed that the seller shall not indemnify the purchaser for accidents or damages to persons or property other than those under the agreement purpose, or loss of profit.
10.11. Technical assistance shall be governed, as the case may be, by the provisions in the seller’s quotation.
10.12. At the purchaser’s request, the seller may try to diagnose machinery problems or respond to purchaser’s queries. For such purpose, a technician from BARBERAN, S.A. may access the machinery computing system through remote connection and check its operation. In such cases, the purchaser undertakes to be physically present in the machine and safeguard security, especially concerning the machine’s mechanical movements, such as transportations or elevations. The seller shall not assume any responsibility whatsoever derived from the use of the remote connection software by technical personnel not expressly authorised by the purchaser. The seller also shall not assume any responsibility whatsoever derived from the use or incorrect use of the programs installed in the machinery computing system, including protection software such as antivirus or firewalls, or from any operation deficiencies derived from any alteration in the computers’ operating system set-up or network setup and connection. Data protection and backup shall be the purchaser’s exclusive responsibility, including system set-up data. For machinery with remote connection software, a connection request to the seller for online check through the program shall imply the acceptance of all above. Should the machinery not have such software, the purchaser shall make the request by telephone or e-mail and must have the means for the connection available (modem or other), which shall also imply the acceptance of the provisions under 10.12.



11. CIRCUMSTANCES EXEMPTING FROM LIABILITY


The following shall be considered causes exempting the seller from liability whenever they hinder compliance with the agreement: labour conflicts and any other circumstances not under the control of the parties, such as fire, social action, seizure, embargo, insurrection, insufficiency of transportation means, general material shortage, restrictions in energy use and other similar.



12. PLACE OF COMPLIANCE OF THE AGREEMENT, JURISDICTION, APPLICABLE LAW


12.1. The place of compliance of the sale agreement shall be the seller’s registered address.
12.2. The parties waiver their own venue and expressly submit to the First Instance Courts of the city of Barcelona. The law applicable to the agreement shall be the Spanish law, excluding any other and any international treaties and conventions. In particular, the Vienna Convention of 11 April 1980 on the international sale of goods shall not apply.



13. VALIDITY

13.1. These General Terms and Conditions of Sale of the seller shall be the only ones applicable, especially excluding those of the purchaser, unless the seller has signed them and they are not in contradiction with, but complement these ones.
13.2. The Spanish and English version of these Terms and Conditions shall be equally authentic. In case of conflict or gap, the Spanish version shall prevail.
13.3. The General Terms and Conditions may be periodically updated, but in any case those in force and published (in the website, www.barberan.com) at the time of execution of the agreement shall apply.


Castelldefels, July 2016.