Article 1 Definition and application of these sale conditions
1.1 In the following provisions, “Client” will mean the company that accepts these General Sale Conditions.
1.2 “Contract” or “Contractual Relation” will mean all of the agreements reached between EMUCA S.A. and the Client, any modification or addition to them, as well as all the activities aimed at preparing and implementing an agreement.
1.3 These General Sale Conditions apply to all of the orders sold by EMUCA S.A.
1.4 The general sale conditions annul and replace any other general conditions that are opposed to them, and constitute the only agreement applicable to the sales of EMUCA S.A. with the exception of the general or particular conditions of the Client.
1.5 Any repeal or modification of these general sale conditions should be expressly stipulated in the particular order conditions.
1.6 Derogations shall only apply to a specific order, unless the Client extends them to cover other orders, past or future.
1.7 You may contact the EMUCA S.A. sales network in order to resolve any questions linked to these General Sale Conditions or contact us through the Contact Form provided on the website or through the email address firstname.lastname@example.org.
Article 2 Partial invalidity
2.1 In the event that any condition in these Sale Conditions is declared null and ineffective, the validity of the conditions as a whole will not be affected, the other terms and conditions will remain in force without being affected by that declaration of nullity.
2.2 The condition that is legally ineffective will be replaced by a new one, or interpreted in a way that is legally acceptable, which should be in a wording that is as close as possible to the condition that EMUCA S.A. would have formalized had it been aware of the ineffectiveness of the condition in question.
Article 3 Offers, online catalogue, purchase order and order confirmation
3.1 No offer or budget (of prices) made or presented in the name of or on behalf of EMUCA S.A. entails any commitment, and shall only be considered as an invitation to make an order.
3.2. EMUCA will provide its clients with a Catalogue outlining all the Products that can be acquired by Clients, as well as the main technical characteristics (henceforth, “the Catalogue”). This catalogue will be updated and modified freely by EMUCA in order to include new products or modify any aspect of products.
3.3 These Sale Conditions will solely come into force to the extent that, EMUCA S.A. is aware of the order from the Client and issues acceptance, with it completed from the completed from the issuance and dispatch to the Client of order confirmation.
3.4 If an order confirmation from EMUCA S.A. differs from an order requested by the Client, the contract will be governed in accordance with the order confirmation, unless the Client rejects the order confirmation in writing within a maximum period of 24 hours following receipt, after which the order confirmation by EMUCA S.A. shall be considered to have been accepted by the Client.
For orders made through online sales, these General Sale Conditions will come into force from the point they are expressly accepted through a checkbox provided for that purpose, prior to the creation and subsequent formalisation of the order in this way.
3.5 All declarations made by EMUCA S.A. regarding prices, numbers, measurements, weights or other product specifications are made precisely, but are not binding for EMUCA S.A. This cannot guarantee that there will be no deviations in this regard.
3.6 With regard to the orders for which order confirmation is not sent, the invoice shall be considered as an order confirmation, which shall fully and accurately represent the contract.
Article 4 Delivery to the client
4.1. Unless there is an agreement whereby EMUCA S.A., bearing in mind the country or region of origin of the order, offers paid shipping for a specific order amount and up, delivery will be carried out in EX WORKS conditions (according to the definition of INCOTERMS 2010), so that the goods will be made available to the Client on the warehouse floor of EMUCA. S.A. From that point on, all costs and liability will be borne by the Client. To this end, delivery will be understood to have been made at the point that the goods ordered leave the EMUCA, S.A warehouse, bearing in mind what is established in Article 9 of these Sale Conditions.
4.2 From the point of delivery, including the exact point established in the above paragraph, the products supplied shall be at the expense and risk of the Client.
4.3 The delivery dates outlined shall never be considered as deadlines. In the event of declaration of incompliance made by the Client regarding a delayed delivery, EMUCA S.A. must ratify it or confirm it. In the event EMUCA S.A. confirms this breach, a reasonable period should be granted for delivery.
4.4 In the event that the reasonable delivery period is surpassed, the Client will not have the right to any compensation. In such a case, nor will the Client have the right to terminate or send a notification to terminate the contract, unless the delivery date has been surpassed to such an extent that it is not possible to reasonably oblige the Client to maintain the relevant part of the contract. In such a case, the other party will have the right to terminate the contract to the extent strictly necessary and solely in relation to the part affected by delay to the delivery period.
4.5 EMUCA S.A. will have the right at all times to make partial deliveries.
4.6 Without prejudice to the above, EMUCA S.A. can deliver the products (or assign them to be delivered) at the address outlined by the Client.
4.7 When the product is delivered to the Client’s address, the cost of transporting products or moving them within the premises of the company or the industrial plants will not be included in the price. These costs will be borne by the Client.
4.8 The Client undertakes to accept products diligently and according to what is agreed in the contractual relationship. If the Client refuses or delays receipt of the products purchased, EMUCA S.A. can:
a) Require the Client to comply with its obligations, with it obliged to pay the agreed price, and, where applicable, with outstanding payments, increased by the corresponding accrued interest. At the same time, and without prejudice to the above, EMUCA S.A. can store or deposit the goods, credibly informing the Client that they are available to them, with the Client responsible for the costs resulting from the storage or deposit of the goods faced with the non-receipt of the goods for any reason.
b) Terminate the contractual relationship with EMUCA S.A. able to transfer the goods to third-parties.
c) Without prejudice to all the above, EMUCA S.A. will be entitled to compensation for the corresponding losses.
4.9 If the Client does not pay for the products on time or does not take receipt of the products, the Client will be in a situation of non-compliance without the need to provide notification to that end. In such a case, EMUCA S.A. will have the right to store products at the expense and risk of the Client, or to sell them to a third party. The Client will be obliged to pay the purchase price plus interests and expenses, including storage costs, owing to compensation, which will be reduced where applicable by the net revenue of the sale to said third-party.
4.10 EMUCA S.A. will have the right to postpone new deliveries until the Client has fulfilled all of its pending payment obligations with EMUCA S.A.
Article 5 Transport risks and costs
5.1 If EMUCA S.A. delivers the goods to the address outlined by the Client, they will be delivered with the freight paid and charged to the Client on the invoice, so that EMUCA S.A. will contract the necessary transport for the delivery of the products, and expressly declares that it is not responsible for the result of the transport, the damage that it may cause to products or to third-parties.
5.2 EMUCA S.A. will charge the costs budgeted for the transport company to deliver the products on the Client´s invoice.
5.3 Likewise, and with regard to transport, the Client is obliged to:
a) Obtain the licenses and authorizations needed to export outside of the European Union customs territory or territories that do not come under the scope of VAT application.
b) Assume all the risks of loss or damage to the products covered by the contractual relationship from the moment that they have left the EMUCA S.A. warehouse.
c) Pay any other additional cost that is incurred, in the event that the transport does not arrive in the stipulated time frame, or cannot take on the goods, or because the Client has not given proper notice.
Article 6 Claims for deliveries to the client
6.1 The Client will inspect the products supplied, with the greatest possible care, open their arrival from the EMUCA S.A. warehouse. Any claim due to defects should be made to EMUCA S.A. in writing within a maximum period of seven days from receipt of the order, provided that THE INCIDENT APPEARS on the delivery note of the CARRIER. If the incident does not feature on the delivery note, THE PERIOD WILL BE 24 hours after delivery. Claims based on hidden faults of the item sold should be made within 30 days following delivery.
6.2 If EMUCA S.A. considers the claim justified, and to the extent that this is the case, EMUCA S.A. will exclusively be obliged at its discretion to rectify the defect or defects, or to replace the defective goods, and the Client is not able to also claim any rights or compensation of any kind.
6.3 Following the discovery of any defect, EMUCA S.A. can request the Client to immediately interrupt the sale or delivery of the corresponding products to third parties. The Client will not have the right to any claims with regard to products for which EMUCA S.A. cannot verify the claim.
6.4 The Client cannot make any claims against EMUCA S.A. when it has failed to comply with any of the obligations held directly with EMUCA S.A.. The Client will offer any assistance that EMUCA S.A. may require in order to investigate claims.
6.5 The Client cannot return products before EMUCA S.A. has given its written consent. Transportation will always be carried out at the Client’s expense and risk. Likewise, the management for return will have a minimum cost of 25 Euros. Only if a claim has been presented appropriately, correctly and legitimately shall the reasonable costs of the return be borne by EMUCA S.A. provided that the costs were previously approved by EMUCA S.A.. Specifically, for products that EMUCA S.A. still has on sale on the date of the claim, if the return takes place in a place of 3 months or less from delivery, the amount of the return could rise to the total price, if the return takes place in a period of more than 3 months from delivery, the amount of the return will be 50% of the value. In either of these two cases, EMUCA S.A. reserves the right to charge 3 Euros per box handled in the event that the product does not arrive in the correct conditions.
6.6 EMUCA S.A. will not be held responsible under any circumstances or in any case for hypothetical claims that may result from the improper use of the products supplied or when they have been modified or manipulated without is express consent expressed in writing. The Client is responsible with regard to the sale of products purchased from EMUCA S.A. of informing its clients of this condition, as well as the intended use of the products, their limitations, and where applicable, the non-approval of them for transit, in order to hold EMUCA S.A. harmless from claims.
Article 7 Rates, prices and costs
7.1 EMUCA S.A. can, among other things, make changes to prices, if, between the time that the offer is submitted and the time that all of the payment is made, there have been significant changes to prices regarding, for example, exchange rates, salaries, raw materials, semi-manufactured products, packaging material, etc.
7.2 The prices that EMUCA S.A. applies do not include VAT or other charges, or any other cost incurred. All of these excluded costs will be borne by the Client.
7.3 Whenever nothing else is indicated, the prices will be understood in EX WORKS conditions, as determined in 4.1.
7.4 The prices are always understood to be per box, with complete packaging (offline purchases) and for orders over 100 Euros. In the event of packaging breakage, 3 Euros are added per box handled, and for orders under 100 Euros, there is a 15 Euros cost for administrative processes. In the case of cut or tampered products, check with your salesperson. These conditions do not apply to the Emuca Online Web portal.
Article 8 Payment
8.1 Unless there are specific written conditions, payment will be made, in compliance with the terms outlined in this condition, via direct debit, transfer, credit card, PayPal, according to the conditions agreed with each client when the order is made.
8.2 EMUCA S.A. reserves the right to electronically send its bills to the Client. The latter accepts to receive them via this method of transmission.
8.3 EMUCA S.A. reserves the right to demand a certified cheque in the case of significant amounts.
8.4 EMUCA S.A. can request the Client to provide it with payment guarantees, such as bank guarantees, even after the sale agreement. If necessary, EMUCA S.A. can withhold the delivery of goods until the guarantee is provided.
8.5 If, on its due date an invoice has not been paid on, EMUCA S.A. will demand the immediate payment of all outstanding invoices. Payment should be made before the delivery of any accepted orders. For the same reason, EMUCA S.A. can demand the return of all goods delivered and not paid for on time, through a simple request to the Client, without the need to inform them via a certified letter. Likewise, EMUCA S.A. can recover goods that are in the hands of the Client´s clients or demand them to directly pay the amount for the goods in their possession.
8.6 The due date of one or several invoices entails the obligation of the Client to pay, without any other formality. Consequently, the penalties for delayed payment will begin from the due date of the invoice(s). The Client will be the full debtor of interest on arrears equivalent to the legal interest established by Law 3/2004, of 29 December, which establishes measures for combating late payment on commercial transactions, and its debt will be increased by the management costs of the payment collection.
In the event that the bill is unpaid on the date agreed on the invoice, the Client´s debt shall be increased by the management costs of the payment collection.
8.7 The Client can never, owning to a claim made by it, withhold all or part of the amount of the invoices awaiting payment, nor can it propose or obtain compensation. No claims on the delivery of goods can lead to the non-payment of one or several invoices, unless the proof of the defectiveness of the goods has been provided and duly confirmed by EMUCA S.A. before the invoice is due. In the event of a dispute over an invoice, the claim must be made in writing via a certified letter with acknowledgement of receipt, sent to EMUCA S.A. within the period legally established for that purpose. Following this period, EMUCA S.A. has no responsibility for the goods delivered.
Article 9 Retention of title
9.1 Without prejudice to what is outlined in the above Article, the ownership of the goods to the Client shall not be considered transferred until the Client has fulfilled its total payment obligation in the agreed manner, meanwhile the EMUCA S.A. shall hold retention of title and the goods will remain in possession of the Client under deposit.
9.2 The Client must store the goods in a warehouse in such a way that enables them to be identified as the exclusive property of EMUCA S.A. In the case of doubt regarding the existence or not of the retention of title over a specific good resulting from its incorrect identification by the Client, it shall be understood that the good in question is affected by said retention.
9.3 The Client is obliged to take out and maintain in force insurance policies that adequately cover the goods in storage against all risk of loss or damage.
9.4 In the event of non-payment or the delayed payment of the goods by the Client, EMUCA S.A. will be able to remove the goods held under deposit at the premises of the Client. In this act, the Client irrevocably authorizes EMUCA S.A. to enter its premises for this purpose.
Article 10 Termination
10.1 EMUCA S.A. can prematurely terminate the contractual relationship at any point, with immediate effect and without prejudice to the corresponding compensation for damages, through a request to terminate the contract that shall take effect from the time it is sent:
a) If the Client becomes insolvent or is not in a position to pay its debt on the due dates, or during the normal course of business, stops paying any of these debts on their due date or assigns assets to its creditors.
b) If the Client leaves any amount owed unpaid.
c) If the Client fails to comply with any obligations, responsibilities or is delayed with the compliance of any terms or conditions assumed in compliance with these Sale Conditions or the Law.
10.2 In order to terminate the contractual relationship, EMUCA S.A. must send notification to the Client via any means whereby acknowledgement of receipt is provided, and the termination shall occur automatically. In this case and without prejudice to the above, following the termination of the contract, EMUCA S.A. will maintain the right to demand the immediate and complete payment of all the amounts owed by the Client to EMUCA S.A., and to execute the guarantees intended to ensure payment that have been required from the Client by EMUCA S.A.
10.3 The Client waives the right to any compensation or reparation that may correspond to it at the time of terminating the contractual relationship.
10.4 EMUCA S.A. will have the right to recover the delivered products. In this regard, EMUCA S.A. and its representatives, will have the right to enter the facilities and buildings of the Client in order to take possession of the products. The Client is obliged to adopt the necessary measures to enable EMUCA S.A. to exercise its rights. Likewise, all of the EMUCA S.A. invoices that await payment by the Client will be due and must be paid immediately.
Article 11 Limitation of liability
11.1 Subject to the remaining provisions of this condition, the liability of EMUCA S.A. will be explicitly limited to the provisions of Section 6 with regard to claims, so that, in terms of the goods supplied, EMUCA S.A. will never be liable for any (additional) damage, including indirect damage, and it will not be obliged to pay for damage caused by business disruption, loss of earnings, damage due to personal accidents, damage resulting from the claims of third-parties presented against the Client, or any other damage of any kind.
11.2 In conformity with the provisions of Section 14, liability vis-à-vis the Client for any cause or reason of any nature will be limited to the value invoiced for the products supplied by EMUCA S.A. to the Client that have resulted in the claim. Therefore, a series of interrelated events shall be considered as a single event.
11.3 EMUCA S.A. will not be liable for any damage of any kind that results from or that is caused by the use of the product supplier or because it is not suitable for the purpose that the Client has used it for. EMUCA S.A. does not guarantee the items, nor their saleability or suitability for a specific purpose.
11.4 EMUCA S.A. will not be liable for any damage of any kind caused by acts or omissions of the staff contracted by EMUCA S.A. or of other people whose services have been contracted by EMUCA S.A..
11.5 The Client will compensate EMUCA S.A. against any third-party that claims the payment of compensation for damages relating to the goods supplied to the Client by EMUCA S.A..
11.6 EMUCA S.A. will not be held responsible for any kind of damage when it has acted according to incorrect or incomplete information provided by the Client.
11.7 EMUCA S.A. accepts no responsibility for direct, indirect, physical or material damage due to the incorrect use of the products delivered.
11.8 EMUCA S.A. will address, at its sole discretion and provided that it deems it appropriate, the replacement of its defective items.
11.9 EMUCA S.A. reserves the right to modify the items that appear in its brochures at any time.
Article 12 Force majeure
12.1 In the event that EMUCA S.A. cannot apply (or continue to apply) the sales relationship established due to force majeure causes, either permanent or temporary, it will have the right, without any obligation to pay compensation for loses and damages to the other party, to totally or partially terminate the contractual relationship via written notification without judicial intervention, without prejudice to its right to receive payment from the Client for the part already fulfilled by EMUCA S.A. before the force majeure situation arose, or to suspend the implementation (from that moment on) of the contractual relationship. In the event of suspension, EMUCA S.A. will have the right to declare, during the suspension period, the total or partial termination of the contract.
12.2 “Force majeure” shall include all circumstances that make EMUCA S.A. temporarily or permanently unable to fulfil its obligations, for example, actions by the government, a strike, as well as all circumstances of a similar nature, that prevent a reasonable demand (ongoing demand) on EMUCA S.A. for it to comply (continue to comply) with its obligations to the Client.
Article 13 Intellectual property, copyrights and confidentiality
13.1 The Client cannot eliminate or modify any indication of brands, commercial names, patents or other rights of the goods supplied by EMUCA S.A., including the indications regarding the reserved and confidential nature of the goods supplied, nor can it alter or copy the products or any part of them.
13.2 EMUCA S.A. does not assume any liability for the violations of intellectual property or industrial rights of third-parties caused by the modifications made to the goods supplied without the consent of EMUCA S.A.
13.3 The Client is obliged to retain under the strictest confidentiality all the documentation and/or information that it receives from EMUCA S.A. either directly or indirectly from the point of first contact that EMUCA S.A. establishes with the Client up until the implementation of the contract, as well as subsequent to it.
13.4 Any breach of this CONDITION, will authorize EMUCA S.A. to terminate the contractual relationship due to incompliance. Likewise, in the event that the Client fails to comply with its obligation to post-contractual confidentiality or before the contract is agreed to, it is obliged to pay EMUCA S.A. an amount of 10,000 Euros as an explicit penalty clause.
Article 14 Data protection
The Client must strictly comply with the provisions of the current Organic Law on Personal Data Protection and current national and international regulations that apply to each case, as well as implementing provisions, in relation to EMUCA S.A.
In accordance with what is established by Organic Law 15/1999, on Personal Data Protection, we inform you that the data that you provide to us will be processed by EMUCA, S.A in order to manage and deal with your application or request, and you may be contacted if necessary, and where applicable, to include you or the company that you belong to in our list of contacts, and thus facilitate future relationships or manage the current commercial relationship.
You will be sent information that is of interest to you about our products and services via any means, including electronically. Furthermore, if you expressly accept, your data may be provided to other Companies from the EMUCA Group for the same purposes.
If you wish, you can exercise your right to access, rectify, cancel and oppose, before the party responsible for the file, EMUCA S.A., either in person or by writing to the following address: EMUCA S.A., Polígono Industrial El Oliveral c/H, 4 Post Office Box no. 176 • 46394 Riba-Roja del Túria (Valencia), or via email to email@example.com. You should indicate the right that you wish to exercise and provide a copy of the identification document accrediting the identity of the applicant.
Likewise, in order to keep your data up-to-date, we request that you report any chance to the data to the address outlined, along with the cessation of your activity in the entity or company outlined, in order to proceed with the cancellation and / or historic treatment of it.
Article 15 Applicable legislation / conflicts
In the event of any dispute and / or disagreements between EMUCA S.A. and the Client, expressly waiving any possible jurisdictions and laws that may apply, they will be expressly subjected to the jurisdiction and authority of the Courts of Law in the City of Basildon ESSEX, and subject exclusively to United Kingdom Law.
Article 16 Waiver
The waiver by EMUCA S.A. to demand the Client to fulfil any of the obligations that have not been fulfilled, cannot under any circumstances be considered as a waiver of the right to make claims against other future breaches.
The Client acknowledges that it is informed about the General Sale Conditions of the company EMUCA, S.A, and accepts them as an integral part of the contract.