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General terms and conditions of sale

1. DEFINITIONS

1. In these General Conditions of Sale (hereinafter referred to as “GCS”), the following terms shall have the following meanings:

  • “Seller” or “BRALO”: any company belonging to Bralo S.A., which appears in the offer or other document to which these GCS are applicable.
  • “Buyer”: Any natural or legal person with whom Seller contracts or to whom it sells the “Products”;
  • “Product(s)”: means products, or part thereof, which are the subject matter of the contract, as described in these GTC and, if applicable, in the order confirmation issued by Seller.
  • “Delivery”: perfection of the supply and making available of the goods under conditions Free Carrier (FCA) Seller’s premises (Incoterms 2010).

 

GENERAL

1. All sales of the Products made by the Seller are subject to these T&Cs, unless otherwise stipulated. No other conditions or covenants that have not been expressly accepted in writing by the Seller shall have any legal force and effect.

2. Orders for the sale of Products shall therefore be governed by the GCS, which shall be supplemented, where appropriate, by any special conditions that may be agreed between the Seller and the Customer. These particular conditions shall prevail over the GCS when BRALO has expressly accepted them in writing.

3. The subscription of any order, agreement, contract, etc., signifies the Buyer’s waiver of its own general conditions of purchase and/or any other stipulation, and acceptance of these GCS.

4. All orders must be placed in writing and are subject to Seller’s express approval.

5. The Buyer accepts without reservation the GCS when placing an order of Products to BRALO, having prior knowledge of their content by having been provided with a copy of them by BRALO, in addition to the GCS being published on the Internet website http://www.bralo.com/es.

6. Amendments, modifications or additions to these GCS shall require the written agreement of both parties to be valid.

7. In the event that the competent Courts should declare any provision of these GCS null and void, this shall not affect the remaining provisions of these GCS which shall remain in force. In this case, the parties shall negotiate and try to reach an agreement on the text of an alternative article, which replaces the repealed provision, and whose intent and content is as similar as possible to the latter.

3. DELIVERY AND TRANSFER OF OWNERSHIP

1. The Seller shall endeavor to deliver the Products within the time limit established, which shall be estimated and non-binding, and in no event shall the Seller guarantee compliance therewith.

2. The Seller may make partial deliveries pursuant to a partial acceptance by the Buyer and invoice the supplies partially, unless the Buyer, taking into consideration the interests of both parties, is unable to carry out a partial acceptance within what it deems reasonable.

3. BRALO reserves the right to deliver orders corresponding only to units packaged in multiples or corresponding to packaging lots in which the admissible packaging tolerance is plus or minus 2%.

4. In the event of a delay in the delivery of the products subject of the order directly attributable to the Seller, the Buyer shall apply the penalty previously agreed with the Seller, such penalty being the only possible indemnity action due to delay and without it ever exceeding the total value of the delayed Product. 5. Unless intent or gross negligence can be detected in the Seller’s delay, the Buyer may not refuse to supply the Products, suspend performance of its obligations, especially payment, or request termination of the contract.

6. The risk, property, transport and insurance liability, as well as the point of delivery, is regulated by the Incoterms 2010 agreed in the particular conditions.

 

4. PRICE

1. The Customer may at any time ask BRALO for the price of the products in which it is interested. These prices shall only be valid for the period indicated by BRALO in its communications to the Customer. If no period of validity is stated, it shall be understood to be only 15 days.

2. The price invoiced will be, in any case, the price in force of the product at the time of the formalization of the order by the Customer and its acceptance by BRALO.

3. The prices indicated to the Customer shall not include VAT or any other taxes, fees, transport costs, certificate or other items. Consequently, the price of the purchased product shall be increased by the taxes and/or fees in force at the time of purchase, as well as the transportation costs or any other applicable concepts, which shall be specified in the corresponding quotation or order.

4. The price lists may be modified at any time by BRALO, without prejudice to the prices agreed in the contracts in force with its Customers.

5. If during the manufacture of orders prices are modified due to fluctuations in raw materials or other reasons beyond BRALO’s control, the Customer will be notified and will have a period of 15 calendar days from the communication to express their disagreement, after which they shall be deemed validly accepted by the Customer for all purposes. If the price increase is not accepted, BRALO will value the work performed with the relevant costs accrued up to that moment and will issue the corresponding invoice in the name of the Client, which must be paid by the Client within a maximum period of 30 calendar days from the date it is presented for payment. Once the invoice has been paid, the Customer will have 30 calendar days to pick up the material. Once these 30 calendar days have elapsed, BRALO will be fully released to make use of the material, and the Customer will not be entitled to claim anything for this concept. In orders placed by a Customer-Consumer, if during its manufacture the prices are modified due to fluctuations in raw materials or other reasons beyond BRALO’s control, the increase will be communicated to the Customer-Consumer, and the latter will have the right to terminate the contract if the final price is much higher than initially stipulated.

6. The prices of BRALO products refer to units. In the case of products with packaging containing several units, the minimum sale price is one package and it shall be expressly indicated whether the sale price corresponds to the whole.

7. Any information relating to the prices of items that is published in any medium (catalogs, price lists, webshops, etc.) shall not be considered an offer. In case of divergences between prices, the price of the offer or order accepted by the Customer shall always prevail.

 

5. TERMS OF PAYMENT

1. The Seller’s offer or, if there is no such offer, the Buyer’s order accepted by the Seller, shall include the terms of payment. Pre-specified payment terms may also be used as part of an ongoing business relationship agreement between Buyer and Seller.

2. The terms of payment shall comply with the provisions of current Spanish legislation on measures to combat late payment in commercial transactions, without exceeding in any case the maximum terms established therein.

3. The Customer shall pay the price corresponding to each order of the Products, by bank transfer, direct debit receipts, check, irrevocable letter of credit, as agreed with BRALO. The date of the invoice issued to you by BRALO for this purpose shall, in principle, coincide with the date of dispatch of the Products.

4. All invoices issued by Seller shall be deemed approved and conformed unless Buyer disagrees in writing to Seller within seven (7) calendar days after receipt thereof.

5. In the case of partial deliveries, the Seller shall be entitled to invoice and demand payment for each partial delivery and to issue partial invoices, and the Buyer shall be obliged to pay such invoices in accordance with these GCS.

6. If the amount due has not been paid on the payment date established, the Buyer shall pay to the Seller, without demand and as from the due date for payment, the corresponding interest for late payment, which shall be calculated in accordance with the provisions of the Law in force and all this without prejudice to any other right that corresponds to the Seller, including the right to recover any judicial and/or extrajudicial costs that it may incur to recover the amounts due. The payment of this interest shall not release the Buyer from the obligation to make the remaining payments on the agreed terms.

7. Timeliness of payment is an essential condition, so that if the Buyer defaults on its payment obligations, fails to pay on time or in full, the Seller shall be entitled to suspend any commitment or obligation under the Agreement until the Buyer fulfills its obligations, or even to terminate the Agreement, and all this without prejudice to the Seller’s right to recover damages for late performance or even non-performance of the Agreement.

8. BRALO reserves the right to set a credit limit for each customer and to subordinate deliveries on the basis of this limit and/or the presentation of a sufficient payment guarantee. In case of delay or incidence in payment, BRALO may proceed to the recovery of the unpaid goods and/or to the initiation of legal actions to which it is entitled. BRALO reserves the right to claim prejudicial expenses, especially the costs of injunctions and attorney’s fees.

 

6. RESOLUTION

1. In cases where the Buyer is in breach of any of its obligations or there is reasonable doubt as to whether it will perform its obligations, the Seller shall be entitled to proceed with the resolution and termination of the agreements by written notice to the Buyer. It shall also be entitled to recover its title to the Products, and all without prejudice to Seller’s other rights, in particular the right to recover all damages suffered, including all judicial and extrajudicial costs, and the payment by Buyer to Seller of all amounts due or outstanding which shall be deemed due and payable thereon.

2. Buyer shall not be entitled to terminate the Agreement except after payment to Seller of all amounts due and owing up to that time, including those not yet due, as well as any damages that may be suffered by Seller.

 

7. RESPONSIBILITY

1. The Customer is solely responsible for the choice of the Product that is the object of the sale, as well as for the use or function for which the Product is intended. Consequently, BRALO is not responsible for and does not guarantee that the Product is suitable for the technical applications intended by the Customer, nor for achieving, in whole or in part, the objectives envisaged by the Customer when purchasing the Products. In this regard, the Customer shall not be entitled to return the Products and claim the price paid. Any technical advice provided by BRALO verbally, in writing or by conducting tests, prior to and/or during the use of the Product, is provided in good faith, but without warranty. BRALO’s advice does not release the Customer from its obligation to test the Product supplied to determine its suitability for the processes and uses for which it is intended.

BRALO shall not be liable for damages caused by defects in the Products, except where it is expressly required to do so by applicable mandatory law. Likewise, BRALO shall not be liable for incidental, indirect or consequential loss or damage, loss of profits, loss of production or profits, risks of development of the Products.

3. In any case, if BRALO is obliged to assume any liability for damages suffered by the Customer, such liability shall be limited to an amount equivalent to the amount corresponding to the order of the Product causing the damage, unless an applicable mandatory law imposes on BRALO a higher quantitative limit. Likewise, the Customer may not claim against BRALO for any defect or damage after one (1) year from the date on which the risk of the Products has been transferred to the Customer in accordance with Condition 3 above, unless the legislation in force provides for a longer period.

4. The Customer shall be solely liable, exonerating BRALO as appropriate, for damages arising against its own employees or third parties for improper use, storage, conservation, handling or processing of the Products; in particular, without limitation, when it has not observed the indications, warnings or instructions that BRALO has been able to provide in this regard.

5. BRALO shall in no case be liable to third parties for causes beyond its control, including non-compliance by the Customer with the regulations applicable to products and chemical substances. The Customer shall hold BRALO harmless from any liability for any claims, damages and/or losses arising, directly or indirectly, from the breach of the obligations assumed by the former by virtue of their contractual relationship.

 

8. INTELLECTUAL PROPERTY

1. The intellectual and/or industrial property of the Seller’s trademark, the offer, the information attached thereto, the Products, and/or the supplies, as well as the elements, plans, drawings, software, etc. (hereinafter, “Intellectual and Industrial Property Rights”), incorporated in or relating to the same, belong to the Seller, and therefore their use by the Buyer for purposes other than the completion of the order is expressly prohibited, as well as their total or partial copying or transfer of use in favor of third parties, without the prior express consent of the Seller.

All Intellectual and Industrial Property Rights arising from and/or related to data and/or documents provided or elaborated by the Seller shall remain with the Seller, unless otherwise agreed, not granting the Buyer any type of right or license in relation to the information or material transmitted.

3. Buyer shall not, without Seller’s prior written authorization, modify, alter, obscure, or omit the trademarks or trade names on the Products.

4. The Buyer undertakes to inform the Seller of any infringement of the Seller’s trademark or trade names or other Intellectual and Industrial Property Rights or of any action of unfair competition of which the Buyer is aware. Buyer agrees to assist, to the extent possible, with respect to legal action by Seller.

 

9. CONFIDENTIALITY

1. The Buyer undertakes not to disclose to third parties documents, data, know-how or any other information which it has received from the Seller (whether communicated in writing, orally, electronically or by other means, either directly or indirectly) (hereinafter referred to as “Confidential Information”) without the prior written consent of the Seller, and to use such Confidential Information solely for the purposes provided for in these GCS. Buyer agrees to make Confidential Information available only to employees who have a need for such Confidential Information and who are bound by a duty of confidentiality.

2. The parties, including but not limited to their affiliated entities, owners, managers and employees, without the prior written consent of the party disseminating the Confidential Information, may not use or disseminate or permit the use or disclosure to third parties of trade secrets or other Confidential Information, or make a statement or information circular relating to the transactions to which these GCS apply for any purpose other than the proper performance of the obligations set forth in these GCS. This obligation shall remain in effect for a period of five (5) years after delivery of the Products.

 

10. BUYER’S DRAWINGS AND DESIGNS

If and to the extent that Buyer specifies in writing the Products with a particular design, data or manner of manufacture, Seller shall perform such specifications to the extent that it has accepted them in writing. In other cases, Seller may modify the Products, provided that such modifications are not material or provided that such material modifications have been agreed with Buyer, in which case such modifications shall not constitute a breach of contract and shall not involve Seller’s liability.

2. Seller shall not be liable for any failure to perform or defective performance of Products if it is the result of errors, incompetence or other inaccuracies in data and/or information, in the broadest sense, supplied by or on behalf of Buyer.

3. Seller’s examination of such data/information shall in no event limit Buyer’s liability unless Seller specifically agrees in writing to such liability.

4. The Buyer shall indemnify the Seller for all costs, damages and losses of any kind arising from the manufacture of the Product in accordance with the technical characteristics and information provided by the Buyer, or when there is an infringement of patents, trademarks or industrial and intellectual property models.

 

11. TECHNICAL INFORMATION

1. The scope of supply and characteristics of the Products shall be as defined in the order confirmation. 2. The weights, dimensions, capacities, technical specifications, characteristics and configurations relating to the Seller’s Products included in catalogs, brochures, leaflets and technical literature are for guidance only and are not binding, except in cases where they have been expressly accepted by the Seller. 3. Any measurements or dimensions fixed by Seller shall be deemed to be approximate unless specific measurements are required in writing by Buyer. The quantities shown are estimates only and the products delivered may vary in quantity by +/- 2%.

 

12. USE OF THE PRODUCT BY THE PURCHASER

1. Buyer shall be solely responsible for and agrees to indemnify Seller against any damage or loss which Seller may incur as a result of the use of the Products other than in accordance with the instructions given by Seller or for the purpose for which the Products were supplied.

2. Buyer warrants to Seller: a. that it will comply with all legal requirements or demands, or authorizations of public bodies relating to the Products and to the applications to which the Products are subjected, b. that while the Products are in its possession or under its control, Buyer will comply with such requirements, c. that it will procure that any purchaser of the Products will also comply with these requirements, and d. that Buyer shall indemnify Seller for any liability arising out of or resulting from any failure to comply with such requirements.

 

13. INSOLVENCY

1. In the event that the Buyer is declared bankrupt, dissolved, liquidated or all or part of its assets are transferred, the Seller may proceed with the resolution and termination of the agreements by written notice, without prejudice to other rights of the Seller, such as the recovery of all damages suffered, and the payment by the Buyer to the Seller of all amounts due or such other amounts outstanding as shall be deemed due and payable thereupon.
If the Buyer finds itself in any of the cases of point 1 above, it shall refrain from including the aforementioned Products in its assets, and shall immediately inform the Buyer thereof.

 

14. ANTI-CORRUPTION MEASURES

1. The Buyer undertakes that, at the date of entering into the agreements, contracts, etc., neither it nor its managers or employees shall have offered, promised, given, given, authorized, solicited or accepted any undue advantage, financial or otherwise (or intimated that they will or might at any future time do so) in any way connected with the said agreements, contracts, etc., to which these GCS apply and that they will have taken reasonable steps to prevent subcontractors, agents or any other third party subject to their control or determining influence from doing so.

2. Buyer further undertakes, at all times in connection with the Agreement, and throughout its term and thereafter, to comply with and take reasonable steps to ensure that its subcontractors, agents or other third parties subject to its control or determining influence also comply with the following provisions:

  • a. Buyer shall prohibit the following practices at all times and in any manner, in relation to public officials at the international, national or local level, political parties, party officials or candidates for political office, and directors, officers or employees, whether these practices are carried out directly or indirectly, including through third parties:
    • I. Bribery;
    • II. Extortion or instigation to commit a crime;
    • III. Influence peddling;
    • IV. Washing of the product of the aforementioned practices.
  • b. In relation to third parties under the control of, or subject to determining influence by, Buyer, including but not limited to agents, business development consultants, sales representatives, customs brokers, general consultants, subcontractors, franchisees, attorneys or similar intermediaries, acting on behalf of Buyer in connection with marketing or sales, in negotiating contracts, in obtaining licenses, permits or other authorizations, or in connection with any action for Buyer’s benefit, or as subcontractors in the supply chain, Buyer must instruct them not to engage in or tolerate any acts of corruption; not to use them as a conduit for any act of corruption; to engage them only to the extent necessary for the normal conduct of the Buyer’s business; and not to pay them more than appropriate remuneration for services lawfully rendered to the Buyer.

If Seller, as a result of the right to conduct a contractually agreed audit of Buyer’s books of account and financial records, or otherwise, provides evidence that Buyer has engaged in a material or repeated breach of paragraphs 1 and 2 above, Seller shall notify Buyer and require Buyer to take the necessary corrective actions within a reasonable time and to inform Buyer of such actions. If the necessary remedial action is not taken or, as the case may be, the defense is not effectively invoked, Seller may, at its discretion, suspend the agreement or terminate the agreement, it being understood that all amounts contractually due at the time of suspension or termination of the agreement shall continue to be payable, to the extent permitted by applicable law.

Any entity, whether an arbitral tribunal or other dispute resolution body, adjudicating in accordance with the dispute resolution provisions that may arise directly or indirectly from these GCS, shall have the authority to determine the contractual consequences of any alleged breach of the obligations under this clause.

 

15. MAJOR FORCE

Force Majeure (hereinafter referred to as “Force Majeure”) shall mean any circumstance beyond Seller’s control which prevents, temporarily or permanently, the performance of all or any of Seller’s obligations to Buyer, whether or not such circumstances were foreseen at the time an order, agreement, contract, etc. was concluded, such as, and without limitation: governmental action, refusal, revocation or cancellation of permits, business closure, forced closure of all or part of the business, war or threat of war, epidemics, pandemics, fire, transportation problems, accident, labor unrest, lack of personnel, embargoes, temporary or permanent non-delivery of samples, non-delivery of services by third parties without regard to their cause, defects and/or breakdowns in material, machinery, systems and/or software and hardware, absence or lack of material from which the Products are manufactured.

2. In the event that the Seller is prevented, in whole or in part, from performing its contractual obligations, due to Force Majeure, the performance of the affected obligation(s) shall be suspended, without any liability on the part of the Seller, for such time as is reasonably necessary under the circumstances.

3. When a cause of Force Majeure occurs, Seller shall notify Buyer as soon as possible, stating such cause and its foreseeable duration.

4. If the effects of the Force Majeure cause extend for a period exceeding three (3) months and the Seller is unable to deliver the Product, it may at its option either extend the delivery period during the Force Majeure period or terminate the Agreement and demand payment for the partial delivery made, without being obliged to pay any damages or compensation to the Buyer.

 

16. LEGISLATION AND COMPETENT COURTS

1. Any disputes arising directly or indirectly from these GCS, the parties will attempt to resolve them by negotiating fairly and in good faith.

2. In the event that it is not possible for the parties to reach an amicable agreement in accordance with the preceding paragraph, any disputes that may arise, including any matter relating to the existence, validity or termination of the agreements covered by these GCS, are subject to the exclusive jurisdiction and competence of the Courts and Tribunals of the Seller, and all this without prejudice to the right of the Seller to institute any legal proceedings in any other competent jurisdiction.

3. These GCS, their interpretation and the contractual or non-contractual obligations arising out of or in connection with them shall be interpreted in accordance with the law of the country in which the Seller’s registered office is located.