GENERAL TERMS OF SALE
In these General Terms of Sale (here in after GTS), the following terms shall have the meanings indicated below:
- “Seller” means any BMC member company which appears in the offer or other document to which these GTS apply.
- “Buyer”: Any natural person or legal entity with whom the Seller enters into a contract or to whom it sells “the Products”.
- “Product(s)”: means products, or parts thereof which are the object of the contract, as described in these Terms and Conditions and, where applicable, in the Seller’s order confirmation.
- “Delivery”: supplying the products and making them available under Ex-Works Seller (Incoterms 2000) conditions.
- Unless otherwise stipulated all sales of products by Seller are subject to these TGS. No other conditions or covenants that have not been expressly accepted in writing by Seller shall be valid or legally binding.
- By signing any order, agreement, contract, etc., Buyer waives the right to its own general conditions of purchase and/or any other stipulation and accepts these GTS.
- All orders must be made in writing and are subject to Seller’s express approval.
- These GTS shall be deemed to have been communicated to Buyer from the time Buyer receives an offer from Seller, accompanied by these GTS. Alternatively, they will be deemed as communicated if Buyer received them previously in the course of the commercial relationship with the Seller, in which case they are accepted by Buyer for all purposes when the order is placed.
- If the competent Courts declare any provision of these GTS null and void, the other provisions of these GTS will not be affected and will continue in force. In this case, the parties will negotiate and seek agreement on the text of an alternative article whose intent and content are most similar to the one being replaced.
- Seller will endeavour to deliver the Products by the established delivery date, which is approximate and non-binding and therefore is not guaranteed by Seller.
- Unless there is gross negligence or wilful misconduct on Seller’s part, the expiration of the delivery period will not entitle Buyer to demand damages or compensation, refuse to accept the Products, or suspend the performance of any obligation, especially its payment obligations, or move to terminate the contract.
- The delivery date is calculated from the date on which the operation is approved by Seller and all obligations are fulfilled by Buyer. Delivery times are understood as extended if there are causes that paralyse or obstruct the work, and/or circumstances ascribable to the Buyer and/or third parties, including but not limited to payment delays or a breach of other obligations, in which case the delivery period will be understood as extended for the same amount of time as the delay lasts.
- The products may be delivered by BMC before the deadline, in which case the customer will be notified.
4.- TRANSFER OF OWNERSHIP AND RISKS
- Except as otherwise stated in the BMC offer or price list and agreed in writing between Buyer and BMC, all prices offered are EX-WORKS Seller (Incoterms 2010).
- For the purposes of delivery and liability for the products or materials purchased, the risks are transmitted to Buyer when they are made available at Seller’s warehouses, unless otherwise expressly agreed in writing.
- Seller will notify Buyer when they are available for loading within the delivery period. Within ten (10) days of receiving such notice, Buyer will provide the name of the carrier and the shipping conditions. If Buyer fails to do so, the risk will be transferred to Buyer as of the date on which the goods are ready for shipment, and Seller will be authorised to store the goods at Buyer’s expense and risk, charging Buyer a minimum of 0.5% of the invoice amount for storage for each week or portion thereof. In addition, payment for the products will be considered due and payable immediately. Seller may, within a period of one (1) month after the payment due date, dispose of the products in a reasonable manner without notifying Buyer in order to recover the expenses and losses incurred, notwithstanding the payment obligation assumed by Buyer.
- If Buyer needs to postpone delivery beyond the agreed date, the order will be invoiced on the agreed date and stored by BMC at its facilities, although all risks to the goods will be assumed by customer. We decline any liability for damages to the customer’s goods while in our custody. If the storage period exceeds one (1) month, an additional storage fee of 1% of the sale price will be charged per day. Special agreements may be reached in each case.
- Seller expressly reserves the ownership of the Products, which will continue to be owned by Seller until Buyer pays the agreed price, and Seller is authorised to withdraw the material supplied at the client’s expense if payment is not made as agreed, provided that it has not been used. If the material has been used, Buyer is obligated to pay regardless of the results obtained. If Buyer files for bankruptcy, suspension of payments or similar, it will refrain from including the aforementioned Products in its assets and will inform Seller immediately.
- Under such circumstances, Buyer undertakes to make the existence of this reservation of ownership known to whom it may concern. Buyer is obligated to protect the Products in its custody with due diligence and to insure them against any possible risk at its own expense.
- Consequently, Buyer will refrain from performing any act of disposition, assignment or encumbrance involving the goods as long as any payments are outstanding. If the products are sold by Buyer, Seller may seek payment from the new buyer, even if the goods were incorporated into other products.
- All prices are net, not including any type of tax, VAT, duty or tariff, which will be reflected on the invoice at the corresponding rates. Except as otherwise stipulated in writing between Buyer and Seller, the prices do not include the cost of packaging, transportation, including loading and unloading, insurance, and customs, which are at Buyer’s risk and expense and will be charged separately and in addition to the sale price.
- As a general rule, special offers made prior to a sale are valid for one (1) week and during this time they are considered as fixed in the terms of payment specified in the offer.
- Offers are subject to Buyer’s approval. Offers, contracts and orders must be confirmed in writing by email, fax or letter referencing the proposal or delivery of the signed offer document.
- Offers are subject to BMC’s approval of customer’s credit. Offers, contracts and orders are considered valid when they are approved and accepted by BMC by issuing the signed offer.
- If the costs or materials used by Seller to make the Products are modified after the date of Seller’s offer to Buyer, Seller may pass such increases on to the Buyer with prior notice. In that case, Buyer will have seven (7) days of receiving such notice to cancel the order, in which case neither party will be liable to the other for anything. If Buyer does not reject the price increase within the seven (7) day period mentioned above, it will be considered that the new price has been accepted by the parties for all intents and purposes.
6.- TERMS OF PAYMENT
- All invoices issued by Seller shall be deemed approved and agreed to unless Buyer raises any objection to Seller, in writing, within seven (7) days of receipt.
- In the case of partial deliveries, Seller is authorised to invoice and require payment for each partial delivery and to issue partial invoices, and Buyer is obligated to pay those invoices in accordance with these GTS.
- The payment date is the day on which Seller actually receives the payment.
- If the amount owed is not paid on the agreed payment date, Buyer must pay the Seller the corresponding monthly interest in accordance with Directive 2000/35/EC of the European Parliament and Council of 29 June 2000, which establishes measures to combat late payment in commercial transactions, from the agreed payment deadline until payment is received in full. This is without prejudice to Seller’s other rights, including the right to recover any judicial and/or extrajudicial costs it may incur in recovering the amounts owed.
- The payment deadline is an essential condition and if the Buyer breaches its payment obligations, does not pay on time or in full, Seller will be authorised to suspend any commitment or obligation arising from the Agreement until Buyer complies with its obligations, or even to terminate the Agreement, without prejudice to Seller’s right to recover the damages sustained as a result of late fulfilment or breach of the Agreement.
- If Buyer breaches any of its obligations or there is reasonable doubt as to whether it will perform its obligations, Seller will be authorized to terminate the agreement. It will also be allowed to recover ownership of the Products, without prejudice to other actions available to Seller, in particular the right to be compensated for all damages sustained, including all judicial and extrajudicial costs, and to receive from Buyer all outstanding balances which will be considered due and owing as of that moment.
- Orders accepted by BMC are considered Commercial Sales Contracts and therefore cannot be cancelled by the Customer without BMC’s express consent. If BMC accepts the partial or total cancellation of an order, the customer must pay BMC all incurred or committed expenses, which will never be less than the expenses incurred plus 25% of the price of the cancelled part, as compensation.
8.- MEASUREMENTS AND DIMENSIONS
- Any measurement or dimension provided by Seller will be considered approximate, unless Buyer demands specific measurements in writing. The quantities indicated are estimates and the Products actually delivered may vary by +/-2%, with the corresponding price adjustment.
9.- APPARENT DEFECTS
Buyer will notify Seller of any apparent defects within 72 (seventy-two) hours of delivery.
- Defects or apparent defects are understood to mean shortages in the number of Products or imperfections in the quality or condition of the Products that can be observed on visual inspection when the Products are received by the Buyer.
- If the claim is not made within this time, it will be understood that the goods have been received in perfect condition.
- Seller warrants all Products supplied for a period of 12 (twelve) months from the date on which notice is given that the supply is available for shipment or 12 (twelve) months from delivery by the first carrier to the final Buyer, whichever occurs first, and provided that the claim is notified in writing to Seller within 48 (forty-eight) hours of the time when the defect is detected or should have been detected, and always in compliance with the aforementioned deadlines. Moreover, Buyer must demonstrate that the defects are a direct consequence of errors or lack of due diligence on Seller’s part.
- The expressed warranty consists solely and exclusively of repairing or replacing (at Seller’s discretion) the Products that are recognised as defective, either due to defects in material or workmanship, within a reasonable period of time. Repairs will be made at Seller’s factory. Buyer is responsible for dismantling, packaging, loading, shipping, customs, fees, etc. associated with returning the defective goods to Seller’s factory. Buyer agrees to accept the replaced or repaired Products and in no event will Seller respond to Buyer for any loss or damage of any kind as a result of the initial supply or delays in the delivery of replaced or repaired products.
- Under no circumstances will Seller be liable to Buyer or third parties for any direct, indirect or consequential loss or damage arising out of or in relation to the object of this contract, including personal injury or damages to property other than the goods referred to herein or loss of profit. Any commitments or obligations assumed by Buyer as a result of warrantees provided to Buyer’s customers that go above and beyond what is indicated herein and that have not been explicitly accepted by Seller in writing are the Buyer’s exclusive responsibility.
- The repair or replacement of a defective item does not change the start date of the warranty on the supplied Products. Repaired or replaced products are warrantied from the repair or replacement date and for the time remaining on the warranty period of the defective product that was replaced, until the deadlines stipulated here in have elapsed.
- As an exception to the warranty described above, when the Products delivered are not manufactured by Seller, Buyer will receive the same warranty that would have been extended by Seller to the corresponding manufacturer, except for the guarantee that its use does not violate any third party intellectual or industrial property rights or patents, as such a guarantee cannot be provided by Seller.
- This warranty does not cover damages, defects, etc., resulting from:
- a) Repair and replacement of parts resulting from normal wear and tear.
- b) Repairs, modifications or alterations to Products made by personnel outside the Seller’s organisation.
- c) Improper use, replacement, repair, modification, maintenance, alteration, or failure to follow the maintenance instructions outlined by the Seller.
- d) Failure to lubricate or to use or clean the products with the products recommended by Seller and at the recommended frequencies.
- e) Seller shall provide Buyer with the necessary information and documentation, including operating manuals.
- f) Incorrect or negligent handling, misuse, defective assembly, variations in the quality of the electrical supply, (voltage, current …), changes introduced without the Seller’s approval, installations or modifications that do not adhere to the technical instructions for the product and any other cause not ascribable to Seller.
Seller is not liable for any damages or losses, including those caused to third party personnel and/or property, including Buyer, its personnel or third parties.
- Under no circumstances will Seller be liable for any indirect or consequential damages that may arise as a result of the supply, including but not limited to loss of production, loss of profit, cost of stoppages, damages to products or parts or equipment other than the products owned by the Buyer or third parties, on-the-job or third party accidents, environmental accidents and incidents, etc.
- Seller’s total liability arising from the supply for any and all items is limited to the value of the supply that gave rise to the claim.
12.- CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
The intellectual and/or industrial property associated with Seller’s brand, the offer, the information attached to it, the products, and/or the supplies, as well as the elements, plans, drawings, software, etc., incorporated in or related to them, belongs to Seller. Use of these items by Buyer for purposes other than completing the order, as well as copying or disclosing any or all of the information to third parties without Seller’s prior express consent is strictly prohibited.
- All intellectual and industrial property rights arising from and/or related to data and/or documents provided or prepared by Seller will remain in Seller’s possession unless otherwise agreed, and Buyer is not granted any type of license or right to the transmitted information or material.
- Buyer may not, without Seller’s prior written consent, modify, alter, cover, or omit trademarks or trade names on the Products.
13.- TECHNICAL INFORMATION
- The scope of delivery and characteristics of the Products are defined in the order confirmation.
- The weights, dimensions, capacities, technical specifications, characteristics and configurations of Seller’s products included in catalogues, brochures, prospectuses and technical literature are indicative and non-binding, except in those cases where they have been expressly accepted by Seller.
14.- USE OF THE PRODUCT BY THE BUYER
- Buyer is solely responsible and agrees to hold Seller harmless from any losses or damages incurred by Buyer as a result of using the Products in a manner that diverges from the instructions given by Seller or for a purpose other than that for which the products were intended.
- Buyer warrants to Seller:
- a) that it will comply with all legal requirements or authorizations by public bodies in relation to the Products and the applications for which the Products are used,
- b) that Buyer will continue to meet such requirements while the Products are in its possession or under its control,
- c) that it will ensure that the buyer(s) of the Products also comply with these requirements,
- d) that Buyer will hold Seller harmless from any liability arising out of or as a consequence of a breach of such requirements.
15.- ASSIGNMENT OR SUBROGATION
Seller is authorised to subcontract the preparation of some or all of the Products to third parties and may transfer some or all of its rights and obligations, which may include naming a third party to assume the fulfilment of its obligations.
- Buyer is not entitled to transfer the agreement or the rights and obligations arising therefrom to third parties without Seller’s written consent.
- If Buyer is declared bankrupt, in suspension of payments, receivership, administration or any similar process or if some or all of its assets are dissolved, liquidated or transferred, Seller may terminate the agreement giving written notice, notwithstanding any other actions available to Seller such as compensation for losses and damages sustained and payment by the Buyer of all outstanding balances owed to Seller, which will become immediately due and payable at that time.
17.- LIMITS ON EXPORTS
- If any of the Products supplied by Seller are subject to export control regulations, Buyer must refrain from exporting such products directly or indirectly, without Seller’s prior written consent.
- In this regard, Buyer warrants and represents that it will notify Seller of any sale to a company located in the United States and/or Canada or when it has reason to believe that one of its customers might export the products to these markets.
18.- FORCE MAJEURE
Seller is not liable for the defective performance or non-performance of any agreement due to force majeure in the broadest sense of the term.
- Force majeure means any circumstance beyond Seller’s control that temporarily or permanently prevents the performance of any or all of Seller’s obligations vis-à-vis the Buyer, regardless of whether or not such circumstances were foreseen at the time when the order, agreement, contract, etc. was signed, including but not limited to: actions of governments; denial, revocation or cancellation of permits; business closure; compulsory closure of part or all of the company; war or threat of war; fire; transportation problems; accident; labour disputes; lack of personnel; embargoes; temporary or permanent non-delivery of samples; non-delivery of services by third parties no matter the cause; defects and/or breakdowns of equipment, machinery, systems, hardware and/or software; shortage of materials needed to manufacture the products.
- If Seller is unable to make delivery as a result of an event of force majeure, it may at its own discretion either extend the delivery period during the force majeure period or terminate the Agreement, as well as demand payment for any partial deliveries, without being obligated to pay Buyer for any damages or compensation.
Any correspondence related to this contract will be made in writing in Spanish, the official language of the contract, and will take effect within 24 hours of being sent by certified mail to the registered offices of the parties.
20.- LEGISLATION AND JURISDICTION
- All agreements covered by these General Conditions, as well as any disputes or differences arising between the parties are bound by the jurisdiction of the courts and tribunals in the Seller’s judicial district, without prejudice to the Seller’s right to bring actions in any other competent jurisdiction.
- The applicable law shall be that of the court with jurisdiction to hear the dispute between the parties.
Note: Clauses other than the ones detailed herein will not be accepted unless they have been previously agreed upon in writing with BMC.