Sale and delivery general conditions. BSV ELECTRONIC S.L.
1. Scope of Application
The sales and deliveries performed by BSV ELECTRONIC S.L. will be made exclusively in accordance with the following Sale and Delivery General Terms and Conditions (« Sale Conditions »), which will be accepted by the Client upon placing an order or receiving a delivery. They will also apply to all future transactions with the Client. The application of contradictory or additional terms and conditions of the Client will be excluded, even if BSV ELECTRONIC S.L. does not expressly object to them.
2. Contract Formalization
2.1. The offers issued by BSV ELECTRONIC S.L. shall not be binding. A contract will not be effective until the order has been confirmed by BSV ELECTRONIC S.L. and will be governed exclusively by the content of the order confirmation and the present Sale Conditions. Verbal promises or agreements will only be valid if confirmed in writing by an authorised employee of BSV ELECTRONIC S.L.
2.2. The sales personnel of BSV ELECTRONIC S.L. are not authorised to represent such entity. In particular, sales personnel may not formalise contracts or make binding promises regarding products to be delivered (« Products ») or other conditions.
3. Delivery Dates and Periods
3.1. The delivery dates and periods will only be binding if they have been expressly agreed in the contract as such and the Client has provided BSV ELECTRONIC S.L. in a timely manner, with all the information or documentation required to carry out said delivery, and has made any advance payments in the form and amount agreed between the parties. The delivery periods agreed by the parties will begin on the confirmation date of the order. In the event of additional or supplementary contracts formalised at a later date, the delivery dates and periods will be extended or readjusted accordingly, as appropriate.
3.2. The cases that cannot be foreseen, avoided and that are outside the control and/or scope of influence of BSV ELECTRONIC S.L. and for which it does not assume any liability, such as war, natural disasters or labour conflicts, will exempt BSV ELECTRONIC S.L., while these circumstances exist, from its obligation to make the deliveries within the deadline or to comply with them in a timely manner. The periods, delivery dates and compliance, as the case may be, will be extended or readjusted, for the time in which these circumstances occur, and the Client must be informed of them in a timely manner.
3.3. Any commitment of BSV ELECTRONIC S.L. in relation to Products that BSV ELECTRONIC S.L., does not produce itself and obtains from third parties, will be subject to BSV ELECTRONIC S.L. receiving them from the third party suppliers on time and in the agreed quantities.
3.4. In the event that the Client has not duly accepted the delivery or has failed to comply with any of its obligations to cooperate with BSV ELECTRONIC S.L. the latter will be entitled, without prejudice to any other rights it may have, to (i) reasonably store the Products at the expense and risk of the Client, or (ii) to terminate the contract in accordance with the applicable legislation.
3.5. BSV ELECTRONIC S.L, may make partial deliveries for justified reasons, if and to the extent that it is reasonable for the Client.
4. Shipping, Transfer of Risk, Transport Insurance
4.1. In the absence of other instructions from the Client, BSV ELECTRONIC S.L. will send the Products to the Client at the cost and risk of the Client. The shipment will be made through a reasonable shipping system with the usual packaging. The address for the shipments to the Client will be the same as BSV ELECTRONIC S.L. uses for ordinary communications with the Client, unless the Client designates another one in writing.
4.2. The risk will be transferred to the Client upon delivery of the Products at the agreed place of delivery. In the event that the Client has breached the obligation of acceptance, the risk shall be transferred to the Client at the time of the breach. In the event that the Products have to be collected by the Client or a third party authorised by the Client, and the delivery is delayed for reasons attributable to the Client, the risk shall be borne by the Client from the date on which the Client is notified of the availability of the Products for shipment.
4.3. The Client is obliged to inspect the Products at the time of receipt to ascertain if there is any transport damage and must inform BSV ELECTRONIC S.L. immediately about such transport damage in order to allow BSV ELECTRONIC S.L. to file potential claims against the carrier.The Client must, at the discretion of BSV ELECTRONIC S.L., promptly return the damaged Products or prepare them for collection by BSV ELECTRONIC S.L. in their original packaging.
5. Prices, Payment Conditions
5.1 Unless the parties have agreed a specific price, this will be determined by the BSV ELECTRONIC S.L. price list applicable on the date of the contract formalisation.
5.2. If the agreed delivery date is subsequent to the contract formalisation, and if after the contract formalisation, BSV ELECTRONIC S.L. incurs an increase in costs in relation to the Products beyond its control and which was not reasonably foreseeable by BSV ELECTRONIC S.L. at the time of formalising the contract, BSV ELECTRONIC S.L. is entitled, at its sole discretion, to pass on these costs by increasing the agreed price proportionally.
5.3. All BSV ELECTRONIC S.L. prices are calculated on the basis of Ex Works and exclude the legally applicable VAT. BSV ELECTRONIC S.L. reserves the right to charge additional costs of boarding, freight, transport or shipping and any environmental taxes, which, according to the case, will be charged separately, subject to the Incoterm that may be agreed by the parties. If the delivery of the Products is carried out in a country that is not a member of the European Union, the Client will assume all the taxes as well as the possible customs duties that are due owing to the importation of the Products; BSV ELECTRONIC S.L. will have the right to charge any costs and/or fines that the Client incurs as a consequence of the failure of the Client to comply with these obligations.
5.4. BSV ELECTRONIC S.L. may issue partial invoices for partial deliveries.
5.5. Each of BSV ELECTRONIC S.L.’s invoices, unless otherwise agreed, must be paid within a maximum period of 60 days from the date of the invoice; in the event that this payment period has expired without the payment having been made, the Client will be in default. If the parties agree on annual discounts for prompt payment, these discounts will be applied if at the time that BSV ELECTRONIC S.L. receives the payment there are no amounts pending payment from the Client to BSV ELECTRONIC S.L. The payments made by the Client will not be understood to have been made until BSV ELECTRONIC S.L. has received them. BSV ELECTRONIC S.L. is entitled to apply the payments received from a Client to the claims of previous pending payments owed by the Client to BSV ELECTRONIC S.L.
5.6. In the event that the Client is in default, BSV ELECTRONIC S.L. may request late payment interest at the interest rate applied by the European Central Bank to its most recent main financing operation carried out before the first day of the calendar half-year in question plus ten percentage points. The aforementioned without prejudice to the right to claim any further damages due to the breach.
5.7. The Client shall only be entitled to compensation in the event that its objection has been accepted, it is ready for a decision, or has been finally awarded.
5.8. The Client may enforce a lien to the extent that its objection is based on the same contract and is accepted, ready for a decision, or finally agreed upon.
5.9. In the event that BSV ELECTRONIC S.L. becomes aware of the risk of the impossibility of the Client to comply with its obligations after the formalisation of the contract, BSV ELECTRONIC S.L. will be able to make pending deliveries only after the Client has made an advance payment or provided a guarantee to BSV ELECTRONIC S.L. If said advance payments or guarantee have not been made even after a reasonable period of grace, BSV ELECTRONIC S.L. will be able to partially or totally terminate all or some of the affected contracts. BSV ELECTRONIC S.L. will be able to continue enforcing any other additional rights.
6. Limit of Liability and Compensation
6.1. The obligation of BSV ELECTRONIC S.L. to pay losses and damage will be limited as follows:
(i) For the damages caused by the breach of a substantial contractual obligation, BSV ELECTRONIC S.L. will only be liable up to the amount of the typically foreseeable damages; BSV ELECTRONIC S.L. will not be liable for the damages caused by the breach of a nonsubstantial contractual obligation.
(ii) The limitation of liability as described above shall not apply to damage caused by the Client intentionally or with gross negligence, to the personal injury caused by negligence, or to liability under Spanish product liability law. Nor will it apply to the extent that BSV ELECTRONIC S.L. has assumed a guarantee.
6.2. The Client shall take all the necessary measures to prevent and reduce damages.
7. Quality, Clients’ Rights in event of Defects and Duty to Inspect the Products
7.1. The Products shall have the quality as agreed at the time of the risk transfer. The quality shall be determined exclusively by written agreements concerning the Products’ characteristics, components and specifications. However, minor deviations in structure or colour from the agreed quality are reserved, provided they relate to the nature of the materials used (solid wood, veneer, leather, textiles) and are customary in the field of musical instruments. The aforementioned considered as non-substantial defects.
7.2. The information provided in the sales catalogues, price lists and any other informative literature provided by BSV ELECTRONIC S.L. or other Product descriptions will not constitute a guarantee of a specific quality of the Products. The guarantee of a specific quality or duration must be expressly given in writing.
7.3. BSV ELECTRONIC S.L. reserves the right to make minor changes to the Products in terms of their manufacturing, material or finish, as long as the agreed characteristics are not altered.
7.4. Irrespective of possible rights arising from defects in the Products as set out below, the Client shall be obliged to accept the Products containing non-substantial defects.
7.5. The Client’s rights in the event of Product defects will require that it inspects the Products at the time of delivery without undue delay and it must notify BSV ELECTRONIC S.L. of any defects in writing without delay and no later than (4) four days after its delivery; hidden defects must be notified to BSV ELECTRONIC S.L. in writing without any undue delay from the time they are discovered.
7.6. In the event that a defect is notified, BSV ELECTRONIC S.L. will have the right to (i) request photographs and (ii) inspect and test the Products in respect of which the claim has been made. The Client will grant BSV ELECTRONIC S.L. the required period of time and the opportunity to exercise such right. BSV ELECTRONIC S.L. may also request the Client to return to BSV ELECTRONIC S.L., at its own cost, the Products upon which the claim has been made. The Client will be obliged to return to BSV ELECTRONIC S.L. the costs that BSV ELECTRONIC S.L. incurrs (for example, travel or shipment costs) in the event that the Client’s claim regarding the defect in question is unjustified.
7.7. BSV ELECTRONIC S.L. will be able to rectify the defect at its own discretion by repairing the defect or by replacing the product, both without cost to the Client (both known as the « Subsequent Remediation »).
7.8. The Client must give BSV ELECTRONIC S.L. a reasonable amount of time and the opportunity for the Subsequent Remediation. In the event that the defect of a Product could be repaired by the Client in a simple and quick manner, the Client must carry out said repair at the request and cost of BSV ELECTRONIC S.L., in which case the expenses eligible for reimbursement must be agreed between the parties in advance. BSV ELECTRONIC S.L. must provide the Client with the spare parts for the repair at no additional cost. The Client must provide BSV ELECTRONIC S.L. with the defective parts that it has replaced and take note of the serial number of the Product being repaired on the packaging of the defective part.
7.9. The articles that have been replaced by BSV ELECTRONIC S.L. must, at its request, be returned to BSV ELECTRONIC S.L. and accompanied by a return authorisation form that will be provided by BSV ELECTRONIC S.L.
7.10. The Client’s rights in the event of defects are excluded in the following cases: (i) natural wear and tear, (ii) Product defects due to reasons for which the Client is responsible, such as inappropriate or improper use, failure to observe the operating instructions, an incorrect start-up or misuse (e.g. excessive use), (iii) incorrect assembly or installation by the Client or by a third party commissioned by the Client, and (iv) the use of inappropriate accessories or spare parts or the carrying out of inappropriate repair work by the Client or by a third party commissioned by the Client.
7.11. Should the Subsequent Remediation not be carried out, if such remediation is unreasonable for the Client or if BSV ELECTRONIC S.L. rejects the remediation, the Client may, at its own discretion, terminate the contract in accordance with its stipulations, reduce the purchase price by the amount authorised in writing between BSV ELECTRONIC S.L. and the Client and/or claim damages, or the refund of the expenses unnecessarily incurred.
7.12. Client claims for internal defects shall be made within a maximum period of (30) days from the delivery of the products to the Client. If such claims are not made within this period the Client will lose the right to any action and right of recourse against BSV ELECTRONIC.
7.13. The Client will lose any right of recourse against BSV ELECTRONIC S.L in the event that after examining the packaged or baled goods it finds any defect and does not exercise the corresponding action within four (4) days of receiving the goods.
7.14. In the event of external or manifest defects of the sold item, the buyer must exercise the actions immediately or within a period of four days (4) as of the delivery of the goods by BSV ELECTRONIC S.L. to The Client when the goods are packed or baled and if The Client does not exercise such right within said period, The Client will lose any action or right against BSV ELECTRONIC S.L.
7.15. In the event that the sale is to a final consumer, the provisions of the General Law on Consumers and Users 1/2007 of 16th November shall apply. The period established in the product guarantee, will count, at the latest, in the period of (1) one month as of BSV ELECTRONIC S.L. making the product available to the Client, regardless of when the Client delivers the goods to its client. In the event any claims for damages due to reasons other than the existence of Product defects or when the Client exercises its rights with regard to defects hidden in bad faith or caused deliberately, the period established by law shall apply.
7.16. The Client undertakes to deliver to BSV ELECTRONIC S.L. a monthly list of The Client’s customers to whom the BSV ELECTRONIC S.L. Products have been delivered. The list will contain identification of The Client’s customers, as well as the delivery date of The Client’s goods to its customers, as well as the products that The Client has delivered to its customers and that were manufactured by BSV ELECTRONICS S.L.
8. Product Liability
In the event that the Client sells the Products, whether they have been modified or not, the Client must indemnify BSV ELECTRONIC S.L., in its internal relationship, against any third party product liability claim, and this to the extent that the Client has caused the defect that generates such liability against third parties.
9. General Provisions
9.1. The Client may assign the rights arising from the contractual relationship between the parties to third parties, only with the written consent of BSV ELECTRONIC S.L. The Client may not assign or transfer the sale contract as such without the prior approval of BSV ELECTRONIC S.L. Any attempt to assign the sale contract without the prior consent of BSV ELECTRONIC S.L. will be null and void.
9.2. Amendments or additions to the contract and/or to these Sale Conditions and other parallel agreements must be made in writing. The amendment to the formal requirement for amendments or additions to be made in writing must also be made in writing.
9.3. If any provision of the contract and/or these Sale Conditions should be considered invalid, in whole or in part, the validity of the remaining provisions shall not be affected.
10. Applicable law and Jurisdiction.
10.1. Any litigious matter between the parties will be submitted to the exclusive jurisdiction of the Spanish Courts and Tribunals of the city of Barcelona. BSV ELECTRONIC S.L. may, however, sue the Client before any other court with legal jurisdiction.
10.2. For any litigious matter that may arise between the parties when the Client is domiciled in foreign territory, it is agreed to submit to the provisions of the United Nations Convention on Contracts for the International Sale of Goods.