TERMS AND CONDITIONS OF SALE
DEKLAR SOLUTIONS, S.L.
1.1 These terms and conditions (the “Conditions”) and the purchase order (the “Order”) submitted by a buyer of Goods and/or Services (“Customer”) and confirmed in accordance with clause 1.2, constitute the agreement in full (the “Contract”) between DEKLAR SOLUTIONS, SL (“DEKLAR”) and the Client for the supply of Goods and/or Services and replaces and cancels any declarations, negotiations, pacts, agreements, contracts and any other previous communication.
1.2 These Conditions shall apply to Orders issued by the Customer for the supply of Goods and/or Services. The offer made by DEKLAR, SL for the supply of Goods and/or Services under the terms of, the client will be free to accept or reject at their sole discretion.
The offer will be deemed accepted when DEKLAR receives a purchase order or the signed offer or confirmation via email of the acceptance of the offer.
1.3 In these Conditions: (a) “Goods” means any goods ordered by and supplied to Customer; (b) “Services” means any services related to the Goods that DEKLAR (or a third party) will provide to the Client; (c) “Business Day” means a day (except Saturdays, Sundays or holidays) on which banks are open to operate in Spain; and (d) “Group” means, in relation to a company, that company, any of its subsidiaries or holding companies from time to time, and the subsidiaries of its holding company from time to time.
2.1 The price of the Goods and/or Services will be the one established in the acceptance of the offer or, in case the price does not appear, the last price of the price list that has been notified to the Client at least 7 days before. of the delivery date. The price list may be modified by DEKLAR with a 7-day notice to the Client.
2.2 Unless otherwise indicated, the prices indicated are exclusive of taxes (including value added tax) (“VAT”). In the event that VAT is accrued in relation to a supply of Goods and/or Services carried out under the Contract, the Client must pay DEKLAR the additional amount corresponding to said VAT.
2.3 DEKLAR may, by notifying the Client up to 7 days prior to delivery, increase the price of the Goods and/or Services to reflect any increase in costs that is beyond its control (including exchange rate fluctuations, taxes and fees, cost of labor, materials and other manufacturing costs).
3.1 DEKLAR may invoice the Client for each offer at the time of delivery or after completion of the work; at any time after these.
3.2 The Client must pay the full amount due to DEKLAR, in immediately available funds (without compensation, retention or deduction), as reflected in the corresponding invoice, within 60 days from the date of the invoice. DEKLAR may, at any time and without limitation of any other rights or actions that may correspond to it, offset any amount owed by the Client with any other owed by DEKLAR to it.
3.3 In the event that the Client does not proceed with the payment in accordance with this clause 3, all amounts owed by the Client to DEKLAR for any concept will become immediately due and payable.
3.4 DEKLAR may suspend or cancel deliveries of Goods and/or the provision of Services to the Client without prior notice when the latter has not made payments in accordance with this clause 3.
3.5 In the event that the Client does not make a payment on the corresponding due date, interest will be accrued on the amounts due and pending payment from the due date (including this one) until the effective payment date. Interest will accrue daily at an annual interest rate of 10%.
3.6 All payments to DEKLAR by virtue of the invoices issued to the client will become immediately payable upon termination or termination of the relationship. The provisions of this clause 3.6 shall not affect any statutory or contractual right to claim interest.
4.1 Unless DEKLAR agrees otherwise in writing, each offer will be delivered on “ExWorks” terms. When DEKLAR agrees to deliver the Goods to a place other than its own facilities, the transportation, packaging and insurance costs incurred by DEKLAR will be borne by the Customer.
4.2 The delivery of an order will be postponed for as long as necessary in the event of: (a) Force Majeure, (b) delay caused by the Customer or a third party for which the Customer is responsible; and (c) requests for changes by Customer.
4.3 The responsibility of DEKLAR towards the Client in case of non-delivery of Goods and/or Services will not accrue any payment for compensation for damages or lost profits to the Client.
4.4 DEKLAR reserves the right to deliver Orders in installments, each of which may be invoiced and paid for separately.
4.5 The Client may reject Goods that have been delivered and that do not meet the specifications agreed between the parties, provided that they notify DEKLAR to that effect within 7 days of delivery. The Goods will be understood as accepted in the absence of notification of rejection by the Client in accordance with this clause 4.5.
4.6 After 3 days have elapsed since DEKLAR has notified the Client that the Goods are ready for delivery, without the latter having agreed to receive them, and except in the event that the lack of acceptance is due exclusively to Force Majeure or to DEKLAR’s breach of the obligations assumed in the offer agreement or Contract: (a) the Goods will be understood as delivered at 9:00 a.m. on the fourth day following that on which DEKLAR has notified the Client that the Goods are ready for delivery; and (b) DEKLAR will keep the Goods until their delivery is made, charging the Client all the costs and expenses that derive from it (including insurance).
4.7 In the event that DEKLAR had to incur administrative expenses derived from the use of supplier approval platforms, occupational risk prevention, etc. not contemplated in the offer, these will be passed on to the client by means of an invoice cost + 20%.
5. REQUEST FOR MODIFICATIONS AND CANCELLATION
5.1 The Customer may request reasonable changes to an Offer (the “Request for Changes”) and DEKLAR may (at its sole discretion) accept or not such Request for Changes. In the event that DEKLAR accepts the Request for Changes, it will have the right to increase the price, extend the delivery period and change any other conditions of the sale offer or Contract that are reasonable in such circumstances. DEKLAR will not be obliged to execute a Request for Changes before both parties sign a change agreement that establishes the price increase, the new delivery date(s) and the other conditions that have been modified.
5.2 Within 3 days of acceptance of the Offer by the Client; the Client may cancel it by notifying DEKLAR in writing. In such a case, the Client will indemnify DEKLAR for the losses, damages, costs and expenses, both those already suffered and future ones, resulting from the cancellation.
6. RISK AND OWNERSHIP
6.1 The risk of the Goods shall pass to the Customer on delivery. Ownership of the Goods will not pass to the Customer until DEKLAR has received full payment in accordance with clause 3.
6.2 Until ownership of the Goods passes to the Customer, the Customer: (a) will hold the Goods on a fiduciary basis as DEKLAR’s custodian; (b) will take out and maintain multi-risk insurance with a reputable insurer, covering the Goods for at least their contractual value as of the date of delivery; (c) you will have the right to sell the Goods but only in the ordinary course of your business; (d) must refrain from encumbering or constituting charges on the Goods; (e) will keep the Goods separate from its own goods and those of any third party, and will keep them clearly identified as the property of DEKLAR; (f) will refrain from removing, altering or hiding any identifying mark or packaging of the Goods, and (g) will provide DEKLAR with the information in relation to the Goods that DEKLAR requests at any time.
6.3 In addition to the above rights granted to DEKLAR, if: (a) an amount owed by the Client to DEKLAR in relation to the Goods remains unpaid for 30 days from the date on which they fell due; (b) the Client breaches the conditions of sale; or (c) the Client incurs in any of the assumptions contemplated in clause 16.1, DEKLAR may terminate the agreement or Contract and recover possession of those Goods for which full payment has not been received, hereby irrevocably authorizing the Client will allow DEKLAR to access any of its facilities to claim the goods described in the order as its property. In case of damage or absence of part of the DEKLAR elements, you can claim payment for them according to the SUBMISSION section.
7.1 Subject to clauses 7.2 and 7.3, DEKLAR will repair or replace, at its option, for a period of 6 months from the date of delivery, the Goods or that part of the Goods that has substantial design, material or manufacturing defects ( the “Guarantee”). It will be the Customer’s responsibility, at their cost, to disassemble and reinstall the elements that have been repaired or replaced, as well as the transport to DEKLAR’s facilities, unless otherwise agreed. During the aforementioned period, DEKLAR will once again provide those Services that have manifestly deviated substantially from those specified in the Contract.
7.2 The Guarantee will only apply: (a) to Goods that have been manufactured by DEKLAR; (b) to Goods that have been installed, maintained, used and protected under normal conditions and in accordance with all the technical specifications or instructions delivered or published at any time by DEKLAR with respect to them; (c) when the Customer has complied, and the Goods have been used in accordance with applicable laws, regulations, industry standards, codes and standards; (d) when the Customer has notified DEKLAR in writing of the defect within the following 3 days to have knowledge of it (or should have had it); (e) if the Client does not continue to use such Goods after notification when there is a security problem; and (f) if DEKLAR is given a reasonable opportunity to examine the Goods in question.
7.3 The Guarantee will not apply when: (a) the defect is the result of normal wear and tear due to use, intent or negligence; (b) the Customer modifies or repairs the Goods without the written consent of DEKLAR; (c) the Goods deviate from their specifications as a result of changes introduced to adjust them to the applicable regulations; or (d) DEKLAR has reported the defect.
7.4 The Guarantee established in clause 7.1 will be the only one that DEKLAR will grant by virtue of the sale offer or Contract and the actions contemplated in clause 7.1 will be the only ones required in the event of breach of said Guarantee. Any claim for damages or other compensation such as lost profits is expressly excluded.
7.5 In the broadest terms permitted by law and except for what is established in the sale offer or Contract, all guarantees and conditions, whether express, implied or verbal, and whether they have a contractual or legal origin, are excluded, including, by way of example and without limitation, the implied warranties of merchantability, non-infringement and fitness for a particular purpose.
7.6 The Customer guarantees that he has selected the Goods and/or Services for purchase and has assessed their suitability for the purposes for which he is going to use them based on his own knowledge and experience and that, in the broadest terms permitted by law and with Subject to clause 7.4, it has not relied for this purpose on any declaration or representation of DEKLAR, except those established in the Contract.
7.7 Deklar Solutions can modify the supplied equipment without prior notice.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 DEKLAR will maintain at all times all rights and ownership over any trademarks, copyrights, patents or patent applications, know-how, designs, utility models, brand names and any other intellectual property rights or property rights ( both registered and unregistered) related to the Goods and/or Services and the manufacture of the Goods (including DEKLAR’s technology, know-how and processes used in the manufacture of the Goods), as well as any reports, manuals, specifications or documents prepared or provided by DEKLAR (the “Intellectual Property Rights”).
8.2 The Client acknowledges that DEKLAR is the owner or licensee of the Intellectual Property Rights, which constitute an asset and/or valuable information for DEKLAR. By virtue of this Agreement, DEKLAR grants the Client a non-exclusive, non-transferable and royalty-free license to use the Intellectual Property Rights over the Goods for the sole purpose of receiving, installing, operating and maintaining the Goods. Such license does not include the right to sublicense or reverse engineer the Goods.
9. LIMITATION OF LIABILITY
9.1 Except as provided in clause 9.2, DEKLAR’s total liability to the Client by virtue of the offer of sale or Contract and the corresponding Offer or in relation to them, shall in no case exceed a total amount equivalent to 20% of that which the Client must pay to DEKLAR for the corresponding Order.
9.2 The limit of liability set out in clause 9.1 shall not apply to liability: (a) for death or personal injury resulting from negligence; (b) for property damage; or (c) for the infringement of intellectual property rights of third parties, which, jointly for cases (a), (b) and (c), will be limited to an amount insured by the current DEKLAR policy.
9.3 Without prejudice to the provisions of any other clause of the conditions of sale or of the Contract, DEKLAR will not be liable in any case to the Client for lost profits, loss of income, interest or goodwill, loss or corruption of data, loss or Customer business interruption or economic, special, indirect or consequential damages or losses.
9.4 The actions that correspond to the Client by virtue of the sale offer or Contract are the only actions in the event of non-compliance by DEKLAR that it may exercise, excluding any actions that may correspond to it by law.
10. OBLIGATIONS OF THE CUSTOMER
10.1 The inspection, storage, installation, testing and maintenance of the Goods shall be the Customer’s responsibility.
10.2 The Client shall indemnify and hold DEKLAR harmless against all liability, costs, losses, damages, claims (including third-party claims) or sentences resulting from: (a) improper or negligent use or handling of the Goods, including their use for purposes other than those indicated for them; (b) false or untrue statements regarding the Goods and/or Services; (c) modification of the Goods made or permitted by the Client (including any modifications made by DEKLAR in accordance with the specifications or instructions of the Client); or (d) Customer’s breach of the Agreement.
11. FORCE MAJEURE
11.1 In the event that DEKLAR’s supply or commercial activity is interrupted or limited as a result of a situation of force majeure, including in the event of a pandemic, strike, lockout, industrial conflict (affecting its own workforce or that of a third party), war, riot, social disorder, fire, explosion, flood, earthquake, tsunami, adverse weather conditions, accident, breakdown of plant or machinery, government intervention, non-compliance by suppliers or subcontractors or any other cause that is outside DEKLAR’s reasonable control, DEKLAR may suspend, reduce and/or cancel the delivery of Goods or the provision of Services while said situation continues, without incurring liability.
12.1 Except to the extent permitted or required by the agreement or Contract, neither party may, without the prior written consent of the other, use or disclose to another person the Confidential Information of the other party. 12 2 For the purposes of this clause 12, “Confidential Information” of a party (the “Informant”) means any information, whenever communicated, relating to its business, know-how, products, services, customers, suppliers or other matters of the Informant or of any of the members of her group (including any information that is provided by a third party), but excluding that information that: (i) is or becomes public domain without breach of the agreement or Contract or other obligation of confidentiality; (ii) has been delivered to the other party by a third party without any restriction and without breach of confidentiality by the third party; or (iii) has been individually developed by the other party without relying on the Informant’s Confidential Information.
12.3 Either party may disclose Confidential Information of the other when required to do so by law or by any administrative authority, including the authorities of the stock market on which that party or another member of its Group is listed, provided that, to the extent If this is legally possible, notify the other party of said obligation as far in advance as possible and take into account the reasonable requests of the latter in relation to the content of said communication.
12.4 Either party may disclose the Confidential Information of the other party to those of its employees who have a reasonable need to know, provided that it ensures that each such employee: (a) is informed of the confidential nature of the information; and (b) complies with the confidentiality obligations set forth in the Agreement as if he were bound by them.
12.5 Neither party may disclose the terms of the Agreement to any person, except as provided in clauses 12.3 or 12.4.
12.6 Both parties must establish and maintain effective security measures to prevent the unauthorized use, disclosure or access to the Confidential Information of the other party, as well as to prevent its loss or damage.
13.1 DEKLAR supplies the Goods to the Client for their exclusive use in the country of delivery, and the Client must inform DEKLAR of the final user of the Goods.
The client shall ensure and shall be responsible that the goods or services comply with the current legislation of each country, state or province where the goods are installed or the services are performed.
In case of re-export, the Client will be responsible for complying with the legal regulations on exportation of the country of delivery and/or the country of manufacture of the Goods. DEKLAR will not have any responsibility in relation to the breach of said regulations.
13.2 Customer shall not export, re-export or otherwise transfer the Goods and shall not permit any third party to export or transfer the Goods to any country or person subject to a United States sanction or embargo. Customer understands and agrees that the goods may be subject to the export or import laws of the United States or other countries and that it is Customer’s responsibility to comply with such laws and regulations.
14. PERMITS, AUTHORIZATIONS
14.1 The Customer warrants that it has all necessary licenses, permits and approvals to purchase and use the Goods and/or Services and that it is not subject to any restrictions that prevent it from entering into contracts or agreements for the purchase or resale of the Goods and/or or Services.
15. OTHER DESCRIPTIVE DOCUMENTS
15.1 All samples, descriptive specifications, graphics, illustrations, data, dimensions, weights and details of the Goods and/or Services that DEKLAR delivers (in catalogs, advertising materials or in any other way) are merely approximate and their sole purpose is that of presenting a general idea of the goods and/or services described therein, without any of them forming part of the Contract or having contractual effects (unless otherwise agreed in writing between the parties).
16.1 DEKLAR may terminate the Contract at any time by giving the Customer 1 month’s prior written notice.
16.2 Either party may terminate the Agreement with immediate effect by written notice to the other party, if the other party: (a) is in serious breach of its obligations under the Agreement and (if the breach is rectifiable) fails to cure it within 30 days of being notified of the breach in writing; (b) goes into liquidation (except for the purpose of restructuring or merger) or an administrator of its assets is appointed; (c) suspends or threatens to suspend payment of your debts.
16.3 The termination of the Contract, whatever its cause, will not affect the rights and actions that would have accrued at the time of its termination. If DEKLAR terminates this Agreement in accordance with clause 16.1 or in the event that the Agreement is terminated due to a breach by DEKLAR in accordance with the provisions of section 16.2, all amounts owed by the Client to DEKLAR will become immediately due and payable, without the need for prior request. Likewise, in the event of termination of the Contract for any of the causes contemplated in section 16.2 that is attributable to the Client, the latter will pay all costs, fees and damages incurred by DEKLAR as a result of said termination.
17.1 All notifications or other communications that must be made between the parties in accordance with, or in relation to, the Contract, must be formulated in writing, and addressed to the registered office of the recipient party (if this is a legal person) or to its principal place of business (in any other case) or, as the case may be, to any other address that the party in question has specified to the other in writing in accordance with this clause 17, to be delivered by hand, sent by certified mail with acknowledgment of receipt, courier, fax or email.
17.2 Notifications or other communications will be deemed received, if they are delivered by hand, when they are delivered to the address mentioned in clause 17.1, if they are sent by certified mail or with acknowledgment of receipt, at 9:00 in the morning of the second Day Business following its shipment; if delivered by courier, on the date and time the delivery receipt is signed; or if sent by fax or email, 1 Business Day after sending.
18.1 The Client guarantees that it will comply at all times with its obligations established in this Contract in accordance with the applicable laws and regulations, including those applicable to the environment, safety and hygiene and export control.
18.2 By virtue of this Agreement, the Client agrees to adhere to DEKLAR’s Code/Rules of Conduct and undertakes to comply with its provisions, and undertakes to guarantee, when appropriate, its compliance by each of the entities in its Group.
18.3 The Client guarantees that he has not paid, directly or indirectly, any benefit of monetary value, including without limitation, commissions, fees, illegal commissions or granted discounts to his clients, to DEKLAR officials or employees or to any other third party, nor has he made gifts or entertained, nor has it granted them other favors of a non-financial nature or of any other type.
18.4 Any breach of this clause 18 by the Client will be considered a serious breach. The Client will indemnify and hold DEKLAR harmless against any claims, losses or damages that may arise in relation to its breach of this clause 18.
19. GENERAL STIPULATIONS
19.1 In the event that the ineffectiveness of any of these stipulations is determined, this will not affect the rest of the stipulations of the Contract, modifying or replacing the ineffective stipulation with a valid one that reflects the commercial intention of the parties.
19.2 The fact that DEKLAR does not assert or does not exercise any of the rights that correspond to it by virtue of this Contract or sale offer will not constitute or be interpreted as a waiver of the right in question, which DEKLAR may assert or exercise in any later moment.
19.3 DEKLAR may freely subcontract the supply of the Goods or the provision of the Services, being able to assign or transfer its responsibilities, rights and obligations under this Contract or offer of sale in favor of any of the companies of its Group without prior notice. Customer’s written consent to that effect.
19.4 The Client may not assign its rights or obligations under the Contract without the prior written consent of DEKLAR.
20. APPLICABLE LEGISLATION AND THIRD PARTY RIGHTS
20.1 The Contract or offer of sale will be governed in accordance with common Spanish civil law, excluding its conflict rules, submitting the parties to the non-exclusive jurisdiction of the courts and tribunals of the city of Barcelona for the resolution of any conflict.
20.2 The application of the United Nations Convention on Agreements for the International Sale of Goods (1980) and its corresponding amendments is excluded.
20.3 The Contract will not derive any right in favor of third parties that are not part of it.
For any dispute regarding the interpretation, compliance or breach of this contract, CLIENT and DEKLAR expressly submit, waiving their own jurisdiction, to the jurisdiction of the Courts of Barcelona