STANDARD TERMS AND CONDITIONS OF SALE
Taking effect from the 1st January 2011
This document (hereinafter, the “Agreement”) constitutes a legally binding signed agreement between TOP CABLE, S.A. (hereinafter, the “Vendor”) and their clients (hereinafter, the “Purchaser” or the “Purchasers”) and will be applied to the sale of all the products sold by the Vendor to their clients. Other terms and conditions different to these conditions of sale will not take effect unless it is expressly agreed in writing by the Vendor and the Purchasers (hereinafter, the “Parties”), nullifying any other previous oral or written contract or agreement between the Parties.
1. Perfection of the Agreement
By placing an order to the Vendor, the Purchasers accept the terms and conditions of this agreement. Its content has been added to the Vendor’s website, to which all the electronic documentation issued by the Vendor is linked.
2. Orders and Deliveries
The orders placed by the Purchaser must include the following data: product, quantity, and place and date of delivery. The quantity to be supplied may vary by up to 3% without the purchaser being entitled to make a claim. The Vendor may accept or reject any order. The order will be considered accepted unless the Vendor rejects it in writing within a period of 20 days after its reception. By placing an order, the Purchaser declares that these conditions have been read and understood and expressly accepts them with all the terms hereto expressed.
The offers made by the Vendor, on its own behalf or upon the Purchaser’s request, are purely for informational purposes and are not binding for the Vendor until the order has been accepted. Unless otherwise indicated in the offers, they remain valid for 10 calendar days counting from the day they are communicated to the client. The Vendor reserves the right to modify the offered price during the acceptance period or after it, unless a fixed price has already been agreed for the duration of the supply period. If the Vendor modifies the offered price, the Purchaser may cancel the purchase of what has not yet been supplied.
All the prices published in the catalogue and in the price lists and those appearing in the acceptance of order by the Vendor include freight charges to the place of delivery designated by the Purchaser unless otherwise indicated in writing. The Vendor reserves the right to increase the price specified in the order confirmation if it is due to a rise of more than 5% of the purchase cost of raw material or freight charges, or due to a change of law or any other cause that the Vendor cannot reasonably avoid. In the offers indexed to the price of metals (copper or aluminium), the final price of the order will be calculated (unless otherwise agreed) with the value of the metal from the day prior to the reception of the order, according to the index ratio specified in the offer. Failing any other specification, the index ratio will be that of the London Metal Exchange (LME). With regard to orders with delivery periods greater than one month (after the date of reception of the order) in which a fixed price has been agreed for the whole period, the client undertakes to receive the material according to the agreed conditions of price and date of delivery. Any delay in the reception of the sold products due to reasons not attributable to the Vendor or to the total or partial cancellation of the order by the client entails the obligation of the client to compensate the Vendor for the damages that that delay or cancellation may cause to the Vendor.
The order will be considered delivered according to the Incoterms when the sold products have been made available for the Purchaser in the place of delivery specified in the order. If the Purchaser or consignee does not pick up all the products or a part of them on the date and in the place agreed, the Vendor may, at its convenience, terminate the agreement (cancelling that delivery and any other unresolved delivery and holding the Purchaser responsible for all the suffered damages) or demand its fulfilment (storing the products, which shall be paid by the Purchaser, who shall pay for all the involved expenses and costs). The same rule shall be applied in the cases in which the Purchaser requests the Vendor to delay the delivery of the product or to store it on the Vendor’s premises until its reception or delivery. In that case, the Vendor declines any responsibility concerning the material stored in its warehouses and the storage costs and the Purchaser shall pay the insurance for the stored goods. The dates of delivery are established in good faith and the Vendor will do all possible to deliver on the agreed date. However, the reasonable delay for delivering the order will never be considered a breach of contract. Any complaint for possible damages that the delay may cause to the Purchaser should be made in writing within a period of 10 calendar days after the delivery of the material. Otherwise, no responsibility or charge will be accepted with that regard. The Vendor will only be responsible for penalties due to late deliveries in cases where penalty clauses have been accepted in writing at the time of accepting the order in question. The unloading of the goods will be borne by the Purchaser unless the parties otherwise expressly agree in writing. The Purchaser undertakes to have all the necessary resources for unloading the material at the moment of the delivery and will be responsible for paying the additional charges that its absence may cause to the Vendor.
6. Inspection and Communication
The Purchaser is bound to inspect the products at the moment of delivery and immediately inform the Vendor in writing about any lack, defect or deterioration regarding the delivered goods within a period of seven (7) calendar days after the date of delivery. No complaint for damages in the sold goods caused by the road haulier will be accepted after a period of 48 hours from the delivery to the client, who will also need to make the complaint to the freight forwarding company. If the damages are visible at the moment of the delivery, they must be put on record in the delivery note given by the road haulier along with the goods. Defects with regard to quality or quantity of any delivered product will not give any cause for cancelling the rest of the orders that are not yet supplied. A reasonable variation between the quantity of the delivered products and the ordered products will not itself give entitlement to any complaint for a breach of contract, notwithstanding the charges that the Parties may pay for because of that variation. With regard to the purchase of products that are not included in the catalogue or are manufactured upon the client’s personal request, the Purchaser will have to pay the price of the quantity of the products that have really be delivered, as long as those quantities are between -5% and 5% of the quantities specified in the order.
Unless otherwise agreed, the price regarding the sale of the goods on the Spanish market does not include the cost of the reels and pallets in which they are delivered. In the corresponding invoice, the price ascribed to the reels and pallets shall be determined. In the case that the Purchaser wants to recover the amount paid for the reels and pallets, the Vendor shall reimburse the Purchaser for the amount charged, with an agreed reduction for damages, provided that the Purchaser returns them within a period of 2 years after the date of delivery, on prepaid freight and in good condition. Unless otherwise expressly agreed, the price of sale of the goods destined for exportation includes the cost of reels and/or pallets. No returns and refunds will be accepted. The Vendor’s technical staff will decide on admitting reels and pallets to the Vendor’s warehouses. Reels and/or pallets in bad condition will be rejected at the moment of delivery and the Purchaser will pay for the costs of return or destruction.
8. Description and Warranty
The Vendor guarantees that the products delivered to the Purchaser are suitable for commerce and fit the description included in the order confirmation. The catalogues, price lists, description of the products on the website or any other advertising material of the Vendor are purely estimated, are for informational purposes and are liable to alteration without notice.
9. Limitation of Liabilities
The Vendor’s liability for any defect of the product shall be limited, at the Vendor’s convenience, to the replacement of the corresponding products or to the reimbursement of the price paid by the Purchaser with prior return of the product. The Vendor shall only be responsible for the loss of benefits, income, clients or any other direct or indirect loss arising from this agreement or with regard to it or for any violation or breach of contract when it is attributable to inexcusable fraud or negligence. The Vendor does not guarantee the quality of the sold materials in case they have been resold, manipulated or used for different uses than those stated in the instructions, technical specifications and recommendations approved by the Vendor or in case the electronic and technical regulations currently in force in each country are contravened. No returns of the sold products will be accepted, unless it is due to defects in the product according to the conditions established in this document. Otherwise, the Vendor must accept the return and the returned goods must be in perfect condition so that they can be resold. The Purchaser in this case shall pay the return fees. The return of products specially manufactured for the client’s needs or the cancellation of orders of those products will not be accepted in any case when they have already been passed to production, unless in the case in which the client assumes the payment of the damages (including loss of profit) that those returns and/or cancellation may cause to the Vendor.
10. Force Majeure
If, for reasons of force majeure (fire, accidents, war, strikes, lockouts, riots, civil disturbances, shutdowns of production plants, or lack of the supply of energy, raw materials or transport, governmental prohibitions or restrictions or any other cause reasonably out of the control of any party), the Vendor cannot deliver the order or the delivery of all the products or a part of them is postponed, delayed or impeded in the period and place established, the Purchaser will be able to opt to allow a reasonable postponement for the fulfilment of the agreement or to cancel the affected delivery for reasons of force majeure without any penalization for the Vendor. The Vendor will not be responsible in any case for the losses and/or damages suffered by the Purchasers resulting directly or indirectly from the abovementioned events.
The supplies will be paid for in the way and in the period agreed with the Purchaser and established in the order confirmation, unless otherwise agreed in writing. In any case, the conditions of payment by the client shall be subject to the regulations regarding the periods of payment from the country where the sale takes place. Consequently, the Vendor shall retain the property right of any supplied product until the product has been paid in full. The Vendor reserves the right to cancel any incomplete order or to suspend the delivery in the case that the Purchaser breaches any obligation or in the case that the Vendor has been informed by the market and/or the credit insurance companies that the Purchaser cannot punctually fulfil their obligations. Outstanding and overdue payments due to the lack of liquidity or the absence of a public tender will allow the Vendor to terminate the existing agreement without advance notification in writing. Regardless of the country that the goods manufactured by the Vendor are destined for, the conditions of payment of the sales governed by this agreement will be regulated in compliance with Spanish law and, especially, Law 3/2004 of 29 December, subject to the amendments laid down in Law 15/2010 of 5 July, in which the measures to combat late payment in commercial transactions (or the regulations that, in the future, will substitute them) are laid down. The compensations, interests for late payment and penalty systems applied when the agreed standards are not met shall be kept in accordance with what was established in their rules.
Furthermore, the purchaser will not be allowed to withhold payments for claims that have not been recognised by the seller. In the event of non-payment or late payment of invoices, all outstanding payments will automatically become payable, independently of the payment conditions stipulated for these.
12. Reservation of title
The products supplied shall remain the property of the vendor until the purchaser has paid all invoices related to the order in full. In any event, the purchaser shall be liable for any risk once the products have been supplied to him/her.
The Vendor may introduce some changes in this Agreement at its absolute discretion. Any substantial change introduced to this Agreement will be published on the Vendor’s website and the Purchasers will be able to see through the link appearing in all the electronic documents prepared by the Vendor. The continuity of the trade relations after the abovementioned publication of the changes introduced to this Agreement will be taken as acceptance of those changes by the Purchasers. Before the acceptance of any order, the Vendor may suspend the range of products or any part of it. Likewise, the Vendor may modify its catalogues, price lists and offers under the conditions laid down in this Agreement.
14. Industrial Property Rights
In the event of any allegation of the violation of the industrial property rights of third party companies which are attributable to technical designs or data supplied by the purchaser, the purchaser undertakes to discharge Top Cable from liability for any claims and assumes all responsibility arising from such claims.
15. Independence of Clauses
In the case that, regardless of the cause or extension, a provision of this Agreement is declared null, void or unenforceable, that nullity, invalidity or non-enforceability will not affect or entail nullity, invalidity or non-enforceability of the rest of the provisions of this Agreement, adducing the application of that provision to the greatest extent permitted according to applicable law.
16. Applicable Law
The Agreement shall be governed by and construed in accordance with the laws of Spain. Any dispute, controversy or claim arising out of or relating to this Agreement shall be subject to the jurisdiction of the courts and tribunals of the town of Rubí in Barcelona (Spain) empowered to resolve that dispute, controversy or claim.
17. Priority of the Spanish Version
If this Agreement is translated into other languages and there is a conflict between the Spanish version and the version in a foreign language, the Spanish version shall prevail insofar as that conflict or contradiction is due to a translation mistake.
18. Confidential Information
The Parties shall maintain the confidentiality of any information with regard to the products or trades of both parties (regardless of the source of information). This restriction does not extend to the information required from any party by any administrative and/or judicial authority.
The Parties have the right and obligation to collect and process information of a commercial nature regarding their relations according to the rules set forth by the Spanish Organic Law on Data Protection.