GENERAL CONTRACTING CONDITIONS
l. – Application scope - The present general contract conditions will be applicable to any contract made between INDUSTRIAS CESPEDES E HIJOS SL hereafter named , "the Company" within its activity; In general, manufacture of metallic tanks, or any other material, machinery and agricultural equipment in general, and specially, those specific for food and beverage industry, the rental of any type of machinery and equipment, sale or use of cleaning products, manufacturing of industrial machinery, maintenance and repair of any type of facilities or machinery and any other that contrasts with the needs of who will hereafter be called "the customer" , "supplier" or "subcontractor"
They may only be modified by written agreement between the parties, so that clauses or conditions that appear, printed or handwritten, in orders, budgets, letters or other documents issued by the Client will be invalid in this sense.
The modification by INDUSTRIAS CESPEDES E HIJOS S.L. of these general conditions of contract will not affect contracts already fulfilled. These general contracting conditions are public and are communicated to customers by postal mail, electronic mail, FAX or any other means that the selling Company chooses, and it will not be necessary to communicate them to the customers every time a contract is made, it will be enough to only send them once as they are the same for all operations except written agreement expressing the contrary.
In any case, and so the customer will not be able to claim lack of communication of the contract, they are available in the company offices located at Chan da Ponte Industrial park, Pavilions 1 and 20, 36450 Salvaterra do Miño - Pontevedra, in the URL: http: //www.icespedes.com and in the Register of Movable Property of Pontevedra in section "Registration of General Conditions of the Contracting" with the name of "General Conditions contracting of INDUSTRIAS CESPEDES E HIJOS SL"
2. – SALES/RENT CONDITIONS
2.1- Budget- The CUSTOMER has the right to receive a written and detailed budget of the service he or she contracts. The validity of the same will depend on the service provided by the company.
The client is responsible for the veracity of the measures and data provided to the company for all purposes.
The company will not receive any compensation for the realization of the budget provided that the works are executed by INDUSTRIAS CESPEDES E HIJOS S.L. nevertheless, if the client, once the budget has been made, decides to withdraw from the budgeted services, he must pay the working hours necessary for the preparation of said budget, and pay the rest of the expenses incurred in preparing it.
If the CUSTOMER makes the order directly and does not request the preparation of the budget, it is understood that he waives the realization of the same.
In this way, the Company may carry out the requested order when the CLIENT has given his agreement by accepting the quote through email, telephone or fax or has waived the preparation of the same when making the order directly
2.2. - Time and place of delivery- The delivery period will be that which has been expressly agreed between the parties.
The documentation that proves the delivery of the merchandise is the corresponding delivery note, contract, waybill or any other document issued by the company.
The cost of moving the goods will be borne by whoever is stipulated by contract.
The delivery time will be extended:
• When the requirements expressed by the client are not met.
• When the client provides the company with inaccurate data.
• When there are reasons beyond the will and control of the Company that prevent compliance with the delivery date.
• When the CUSTOMER changes the original order or is late in its contractual obligations, especially those related to the delivery of the documents necessary to carry out the transaction or the agreed payments.
2.3.-Price - All prices must be considered as net, in the agreed currency, without any deduction of any kind, unless otherwise agreed and will be agreed by the parties.
Prices do not include taxes, fees or other charges, both general and special, unless otherwise agreed in writing, taking into account the Incoterms that apply and / or the conditions of delivery of the goods. .
2.4.-Payment terms -Unless otherwise agreed in writing, payment must be made in cash without any discount, and without deduction, compensation or withholding allowed.
In the event that payment dates have been agreed, these must be fulfilled by the CLIENT even if the delivery is delayed due to issues beyond the control of the Company.
If the Company considers it appropriate, it may request the guarantees it deems necessary to ensure due compliance with the contractual obligations of the CUSTOMER, and may in the meantime suspend deliveries.
2.5.-Accrual of interest for late payment and compensation for delayed fee costs. Effective from the agreed payment date, the CUSTOMER must pay default interest according to Law 15/2010, which establishes measures to combat late payment in commercial operations, which are set with the acceptance of these general conditions of hiring the maximum legal allowed. If the CLIENT incurs a delay in a payment or the provision of an agreed guarantee, all pending costs at that time will be considered liquid and due. , expired or not.
In addition to the accrual of these interests when the CUSTOMER is in default, the company shall have the right to claim from the CUSTOMER the delay costs referred to in Law 15/2010.
2.6.- Acceptance of the provision of the service or goods delivery.-
Purchase.- The document of receipt of goods that will be delivered to the CUSTOMER’S address or another site designated by him or her, must be signed by the customer or any other authorized person, in the case of absence of this, the CUSTOMER, when accepting these conditions, will validate the signature of another person who, being in these dependencies, receives the goods and signs the acceptance of the same, having to identify him or herself in the delivery note with his or her name and ID number.
At the time of delivery, the customer will check the products delivered and the service, in terms of quality and quantity.
The company will own the molds, containers and packaging.
Renting. - It is understood that the machinery or material subject to the lease contract is accepted upon signing the lease or at the date of having it available.
The lessee will receive the machinery or material subject to the rental contract in perfect conditions of conservation and operativity, indicating the instructions for its management and providing the technical data , legal and safety precautions necessary for its normal use and the lessee is obliged to return it in the same state that he or she received it, at which time will be taken into account the natural wear and tear that is caused by the performance of works of such type of machines, not when there has been negligence on the part of the tenant, causing breakdowns.
Because the material or machinery is handled by the staff of the lessee, he is responsible for any failure due to improper use, as well as damages caused to the machinery itself and to third parties that are affected by any loss caused by the misuse of the material or the negligence of its manipulator.
The material or machinery is owned by the landlord and cannot be subleased or lent to third parties without the express permission of the owner. Likewise, you cannot replace or hide the identifying signs or brand of the lessor on the machinery. The lessee shall allow the lessor to periodically review the rented machinery where it is found to be providing service.
The breach of this obligation by the lessee will exempt the lessor from all liability in case of breakdown of the machinery.
The rental material not returned, whether derived from Theft-misplacement or any cause that renders it unusable, it will be considered as sale of new material and will be invoiced at market price. It is the obligation of the lessee to file a complaint with the data of the machine
Both the transfer of the equipment and its return at the end of the rental period, will be at the expense of the lessee, as well as the expenses that may originate the unloading or loading of the equipment described, assembly or disassembly thereof.
As a consequence, transportation will be carried out under the sole responsibility of the lessee.
The location and installation of the machinery will be carried out by the lessee under his or her responsibility and in accordance with current legal and/or administrative regulations;
The company will have the right to charge the customer a price for the custody of the machinery or material already repaired that has not been picked up, the price will be set depending on the area where it is located.
The company will respond as a guarantee according to the legislation established at all times regarding the products, it manufactures and the technical service, in the remaining cases it will adhere to the manufacturer's guarantee.
All deficiencies or damages outside the COMPANY’S control are excluded from the guarantee and responsibility of the Company, especially if it is as a result of normal wear and tear, inadequate or improper maintenance, use and installation of the machinery, unauthorized modifications, influence of an external action of any type and materials of forced consumption, such as lubricants and materials used for cleaning.
The glass parts, handles,wrenches, fuses, aesthetic and removable parts and any plastic material in general of the machinery are specifically excluded from the warranty.
If the CLIENT alleges that a guarantee, in accordance with the technical specifications of the merchandise, is not reached, the guarantee will only be valid if the Company has the opportunity to verify that the guaranteed parameters are not reached.
The guarantee by the Company is subject to the timely fulfillment of the payment terms agreed with the CUSTOMER
INDUSTRIAS CESPEDES E HIJOS S.L. will not be held responsible for material damage caused during transport if these services are provided by a third party.
If the product has to be displaced or if a technicians has to go to the customer’s premises, the displacement will be charged to the CUSTOMER , , who must make a provision of funds both for the displacement and for the repair of the machinery or other services by the technicians of the company. The amount of the freight will be established by the company depending on each particular case.
Subsequent to the sale, the company is not responsible for the obvious defects or that were in sight at the date of formalization of the contract with the CUSTOMER, in any of its products.
Regarding claims related to use, sale or distribution of the products sold or delivered, individually or in combination with other products, or any other complaint related to the contract, the Customer's rights and the Company's liability shall be limited to substitution by another one as that one or similar features.
It will be decision of the company, unilaterally and when it deems appropriate, the repair or replacement of parts, spare parts, components and machinery.
INDUSTRIAS CESPEDES E HIJOS S.L. is not liable for damages or damages that the machinery may suffer due to the use of any cleaning, corrosive or disinfection product, bought or not purchased within the company, nor for the use, alteration and / or replacement of components, spare parts, parts not authorized by the company of parts of the machinery.
The Customer will never have the right to return the products accepted or when the date to report defects has passed.
The responsibility of the Company will never exceed the value of the goods affected at the time of sale.
If the maintenance or repair of the machinery or material is done by another company, it is not covered as a guarantee.
The company reserves the right to charge for management expenses.
2.8.-Limit of liability- Unless otherwise agreed, the responsibility of INDUSTRIAS CESPEDES E HIJOS S.L. will never exceed the value of the contracted budget.
The Company is released from any liability above that maximum, even if it was caused by its own negligence or breach of obligations.
INDUSTRIAS CESPEDES E HIJOS S.L. will face damages and losses caused to people and goods in the execution of their work provided that in it and in respect of such damages it has been found ATTRIBUTABLE, GUILTY AND RESPONSIBLE.
2.9.-Insurance- The benefit and risk of the object of the contract will pass to the CUSTOMER once placed at the disposal of the same in the place agreed in the contract.
2.10-Breach of the CUSTOMER- In case of non-compliance, total, partial, lack of timely or adequate compliance with any of the obligations of the CUSTOMER, as well as, in case of declaration of insolvency, liquidation or dissolution of your company, INDUSTRIAS CESPEDES E HIJOS SL will have the right to notify the total or partial rescission of the contract or the suspension of its execution in whole or in part.
This shall be done by means of notification without the need for further warning of non-compliance or judicial intervention, and without the Company having to respond for the damages, without prejudice to any other rights that may assist the Company.
As soon as any of the circumstances mentioned above occurs, all claims for payment, whether due or not, refinancing fees or any other obligation that the Company has against the CUSTOMER will become due and payable immediately.
The exchange documents or, failing that, any other formal document of payments stipulated for the payment of the contractual obligations contracted between both companies must be sent to the Company at the time of issuance of the invoice.
The delay in delivery is considered as breach of contract.
2.11-Reservation of ownership- The COMPANY will continue to be the owner of all material supplied until the full acceptance of the agreed payments, being able to withdraw the same upon the first breach of the client, without the need for consent of the same.
2.12. - Compensation- the Company has the right to compensate any amount owed by the CUSTOMER (understood as all companies that are part of the same group as the Buyer), against any amount payable to the CLIENT.
3. - CONDITIONS OF PURCHASE
3.1.- The Supplier is obliged to deliver the goods that are the object of the purchase in accordance with the provisions of the Order and the laws and regulations that will be applicable.
3.2.- The Supplier must deliver all the documentation required by the client in the Order, time, form and quantity, as well as any other information or document, of any kind, that is necessary in accordance with applicable regulations to the purchase.
3.3.-The Supplier must comply with all the provisions in force at all times, especially those of a Labour, national insurance, Social Security or tax nature, as well as those related to the Environment, Safety and Health, Prevention of Occupational Risks and shall be obliged to prove its compliance in the form and established deadlines the company. Likewise, the Supplier must comply with the regulations and internal practices of the company that may be applicable for the reason of the Order.
3.4.-The Supplier guarantees: That all the goods or products object of the purchase are of their full ownership, of first use, made with materials or products of the required quality and that meet the requirements of safety and environment, meet the specified quality and, where appropriate, are suitable for use.
That the goods or products object of the purchase are free of any charges or other real rights, liens, obstacles or affections on them and that it does not fall on the Supplier or on the goods or products any restriction to the free transmission thereof .
That the goods or products comply with the specifications agreed by the parties, as well as compliance with all the conditions established in the Order and that they are free of any defects, visible or hidden, whether by materials, labor, design or manufacturing
That has the rights of intellectual or industrial property in relation to the goods or products object of the purchase or provisioning or, where appropriate, that has the appropriate licenses for its manufacture or sale, being on its own the expenses and costs that derive from them. They will be the responsibility of the Supplier within the warranty period and the latter will be obliged to carry out all repair, amendments, reconstructions, replacements, rectifications and corrections of deficiencies of the goods or products that are the object of the purchase.
4. - Obligations of subcontractors.-
Apply, during the execution of the services, the general principles on safety and health developed in Article 10 of Decree 1627/1997. In the same way, it must apply the principles of preventive action contemplated in article 15 of Law 31/1995 on the Prevention of Occupational Risks.
Comply and enforce your staff as established in your specific Health and Safety Plan. Comply with regulations on the prevention of occupational risks and, especially, with their coordination obligations developed in article 24 of Law 31/1995.
Inform your own staff of the measures to be taken in regard to your safety and health.
You must apply, as far as your entity is concerned, what is established in annex IV of Royal Decree 1627/1997 on general minimum provisions relating to workplaces in the works, to work posts in the works inside the premises and the jobs outside the premises
Inform their direct workers of their occupational risks, according to their jobs, as established in articles 18 et seq. Of Law 31/1995.
Likewise, it must provide them with the personal protection equipment necessary for the safe development of their activities and ensure their correct use. Likewise, it will envisage and implement collective security measures, putting them before the individual ones, and resorting to the latter when the risk is not totally eliminated (subcontractor).
Use personal protective equipment in the terms provided in Decree 773/1997 (autonomous).
Authorize by means of the corresponding act to the workers for the manipulation of vehicles, special machinery and special tools (subcontractor). Use work teams that comply with the provisions of Royal Decree 1215/1997 (self-employed).
He must communicate in writing to the health and safety coordinator in the execution phase any modification to the approved Health and Safety Plan so that, if applicable, he gives his approval.
No work unit will be executed that implies modifications to the approved Plan, without the approval of the health and safety coordinator in the execution phase.
It will communicate to the prevention service the hiring of workers especially sensitive to certain risks and minors. Have the necessary training for the manipulation of specific machinery and / or materials.
Having a Civil Liability insurance on your account and risk, you must provide the company with proof that the coverage includes the period of service provision.
The subcontractor must adapt to the deadlines to which he has committed to provide the service, being directly responsible for the delay in the same, being exempted the company in this sense of any responsibility in this regard
If, during the follow-up carried out by the company, the non-fulfillment of the obligations of the subcontractor or of the agreed quality levels is observed, the subcontractor will be obliged to adopt the necessary rectifying measures, otherwise it will be possible to terminate the order or contract by part of the company and / or contracting by third parties for the performance of the services must be paid by the subcontractor. The company may pass on to the subcontractor the extra costs, chargebacks and penalties imposed on it as a result of any breach by the subcontractor. It must comply with the specific environmental measures and guarantee the quality of the materials with which it works.
In case of any defect in the manufacture of materials that has been used by the subcontractor in its installation, it is responsible for the cost of assembly and disassembly of the same. The subcontractors must have developed a compliance program.
5.-Force Majeure- "Force Majeure" means, for the purposes of this contract, the existence of any contingency, circumstance or cause that is beyond the control of the party invoking it, including, but not limited to, the following circumstances:
Imposition or submission to a law, regulation, decree, order or request of any authority (national, state, regional, provincial or municipal), confiscation, riot, war, riots, fires, floods, earthquakes, storms, explosions, strikes, closures , stop of machinery or factory, impossibility of obtaining raw materials, equipment, diesel or transport.
If by Force Majeure any of the Parties cannot fulfill any obligation of this Contract other than that of payment of the price, that party is exonerated from its compliance, provided that it notifies the other indicating the beginning and the nature of the situation of higher Force.
The Party that invokes the Force Majeure must send immediate notification after the end of the cause that motivates it.
The Company will not be liable to the CUSTOMER for any loss or damage arising from the breach or lack of timely or full compliance with its obligations due to Force Majeure. This clause is applicable to the Company and its factory, and to the CUSTOMER and its factory. Notwithstanding the foregoing paragraphs of this article, if the CUSTOMER is affected by Force Majeure, it will not be relieved from any of its obligations to accept and pay for shipments made prior to the receipt by the Company of the CUSTOMER's written notification of the Situation of Force Majeure, nor the CLIENT may invoke the cause of Force Majeure to delay the payment of the amounts owed. If there is cause of Force Majeure, the Company shall have the right to distribute, in the manner it considers reasonable, the quantities of useful products between your CLIENTS and your own requirements.
6. - Notifications- All notifications, modifications and communications by the Company to the CUSTOMER will be considered effective for all purposes when they are made by sending mail to the address indicated by the CLIENT, sending by email, sms, mms, fax, whatsapp, communication by telephone call to the address or number indicated by the CUSTOMER or, failing that, to the number owned by the CUSTOMER or his authorized representatives. For these purposes, the CUSTOMER states that all the data provided by him are true and correct, and undertakes to communicate to the Company all changes related to your home, collection data and all types of information necessary for the management and maintenance of the contractual relationship between the Company and the CLIENT.
7.-Confidentiality and data protection- In compliance with the provisions of Organic Law 15/1999 of December 13, Protection of Personal Data, personal data provided by the CUSTOMER will be part of the file of CLIENTS of the Company, whose aims are the maintenance of the contractual relationship, control and management of sales and their corresponding charges.
The Company will treat such data with the utmost confidentiality, and undertakes not to use them for a purpose other than that for which they were collected, as well as to keep them with the appropriate measures to ensure their safety and prevent their alteration, loss, treatment or unauthorized access. The Company undertakes to keep professional secrecy regarding the aforementioned personal data, even after the contractual relationship has ended. The CUSTOMER authorizes the Company to keep their data for a period of five years once the contractual provision has been completed.
The CUSTOMER has the possibility of exercising the rights of access, rectification, cancellation and opposition by directing a written communication to the attention of the Data Protection Manager.
8.-Severability- The present conditions will be considered independent and, if any of them, in whole or in part, is left without effect by the parties by express written agreement or was invalid for any reason, the rest will remain valid with all its strength and effect
9. - Applicable Law- These General Conditions shall be governed and construed in accordance with Spanish legislation in matters not expressly provided for therein. As for the law applicable to the operations carried out by INDUSTRIAS CESPEDES E HIJOS S.L. the parties agree by means of the acceptance of these general conditions of the contract, the express submission to the Spanish legal system.
10.- Jurisdiction- SPECIAL ARBITRATION CLAUSE
If an amicable solution is not possible, and litigation is appropriate, the parties, waiving any other jurisdiction, agree to submit all disputes, disputes and disagreements arising from the contract, whether in compliance, interpretation or execution, to the Court of the Association for Commercial Arbitration "TAM" of Vigo within the framework of its Regulations, which is entrusted with the administration of the arbitration and the appointment of the arbitrator or arbitral tribunal, being obliged from now on to comply with the arbitration decision. Regarding the law applicable to the litigation, the parties expressly submit to the Spanish legal system by means of the present general conditions of the contract.