In these terms and conditions the following words have the following meanings:
Contract: any contract between the Company and the Customer for the sale and purchase of Goods.
Company: TGB RODAMIENTOS SL or any other TGB GROUP company intervening in the Contract.
Customer: the person(s) or company whose order for Goods is accepted by the Company.
Goods: any goods which the Company is to supply to the Customer (including any of them or any part of them)
2. BASIS OF CONTRACT
2.1. The Contract will be on these terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document). Each order for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods subject to these terms and conditions. No addition or variation shall apply unless specifically agreed in writing by the parties.
2.2. No order shall be binding on the Company unless and until accepted or confirmed in writing by the Company. The Company reserves the right (without prejudice to any other remedy) to cancel any uncompleted order or to suspend delivery in the event of any of the Customer’s commitments to the Company not being met.
2.3. No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all losses (including loss of profit, loss of business and depletion of goodwill) costs, damages, charges and expenses incurred by the Company as a result of cancellation.
3.1. While the Company will use its reasonable endeavours to comply with any dates specified by the Company for the delivery of the Goods, such dates are approximate only and may not be made of the essence by notice. If no dates are specified, delivery will be within a reasonable time. Subject to the other provisions of these terms and conditions, the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence) nor unless such delay exceeds one hundred and eighty (180) days will any delay entitle the Customer to terminate or rescind the Contract.
3.2. Unless otherwise agreed in writing, the Company’s delivery terms are ex works (Incoterms 1990).
3.3. The Goods shall be at the sole risk of the Customer from the time of delivery to the Customer or to his agent or carrier (including any such agent or carrier instructed by the Company acting strictly on behalf of the Customer). In the event of loss or damage in transit, no claim will be accepted, unless the Company is advised in writing within five days of delivery or in the case of non-delivery, within 21 days of despatch. Any damage to the Goods in transit or claims for shortage should be notified to the carrier and the Company immediately following receipt at the customer’s premises, or port of entry as the case may be.
The Company will at the request of Customer, arrange marine insurance of the Goods and report shipment of the Goods to the insurers but shall not be liable for any negligence or otherwise for any error in complying with such request or omission to do so.
The price shall be the price in force at the time of delivery and the Company’s current price list does not constitute an offer to sell at the prices set out therein. The Company reserves the right to apply a minimum charge on small value orders, and to vary the prices in the Company’s price List where the exchange rate between Euro and the currency in which the price is to be paid varies, by more than five per cent, between the date of publication of such price list and the date on which the Goods are delivered. The price for the Goods is exclusive of any value added tax or any other applicable tax which the Customer shall pay in addition when it is due to pay for the Goods.
6. FORCE MAJEURE
The Company shall not be liable to the Customer or deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Company’s obligations if the delay or failure was due to any cause whatsoever beyond the Company’s reasonable control (including, without limitation those arising from strikes, lockouts or any other industrial dispute or from Act of God, War, National or Local Government restriction, prohibition or control, fire, flood or accidents). In the event that such circumstances last for a period in excess of one hundred and eighty (180) days, the Company shall have the right to terminate the Contract.
Prices don’t include packaging, which will be charged to the Client, unless returned, prepaid and in good condition, within 30 days of delivery and sending to TGB return notice when delivered to the carrier.
8.1. EU Customers
The Company’s payment conditions will be made in advance. Unless otherwise agreed and the risk company insures us the transaction, payment will be made four (4) weeks after the invoice date. (30 days)
8.2. Non EU Customers
Orders from Customers outside the European Union are accepted subject to either of the following modes of payment having been arranged:
• 8.2.1. Net cash with order.
• 8.2.2. Deposit at a bank nominated by the Company, of an irrevocable documentary credit of a first class bank, or a Non EU bank bearing the confirmation of a first-class bank operating in Barcelona; unless
other payment terms shall first have been agreed by the Company.
• 8.2.3. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
• 8.2.4. The Customer shall make all payments due under the Contract without any deduction, whether by way of set-off, counterclaim or otherwise, unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
9.1. Responsibility for licences
The Customer is responsible for obtaining all document, licences and authorisations which may be required to enable the Company to deliver the Goods to the Customer. For the avoidance of doubt, the Company shall not be liable to the Customer for a failure to obtain any documents, licences and authorisations referred to in this Condition.
9.2. Control of export and commerce
Certain products will be designated as «dual-use», both civil and military, and some countries designated as restricted and therefore subject to Trade and Export Restrictions and controls. The customer is responsible for identifying when export or trade restrictions may apply and to obtaining a licence or Government clearance as necessary.
10. DESCRIPTION AND SPECIFICATION
Whilst every effort is made to ensure accuracy the descriptions, illustrations and material contained in any catalogues, price lists, brochures, leaflets or other descriptive matter represent the general nature of the items described therein but do not form part of the Contract or amount to any representation or warranty and should be relied upon only in the exact circumstances in which they are expressed but otherwise they are excluded from the contract. The Company reserves the right to modify the design of Goods without notice.
11.1. Subject as provided below, the Company warrants all Goods supplied by it to be free from defects in material and workmanship, but its sole liability under such warranty shall be limited to either replacing, repairing or issuing credit (at its option) for any Goods which within twelve (12) months of delivery are returned, carriage paid, to the Company and which the Company accepts as having been defective in materials and workmanship.
11.2. The Company shall incur no liability under this warranty:
• 11.2.1. Unless the Company is notified in writing within seven (7) days of the discovery of any defects by the Customer.
• 11.2.2. For any Goods in which the alleged defect is found on examination to have been caused in whole or in part by misuse, neglect, overload, unsuitable lubricant, improper installation or repair, alteration or accident or defects arising from fair wear and tear, abnormal working conditions and failure to follow any instructions issued by the Company.
• 11.2.3. For any transport, installation, removal, labour or other costs.
• 11.2.4. For any goods not manufactured by the Company, but the Company will use its reasonable endeavours to pass on to the Customer the benefit of any warranty or guarantee given to the Company.
• 11.2.5. Where the defect arises because the Customer has failed to follow the Company’s oral or written instructions as to the storage installation, commissioning, use or maintenance of the Goods.
• 11.2.6. If the Customer alters or repairs the Goods without the written consent of the Company.
• 11.2.7. If the defect in such Goods arises from any design defect in any drawing, design of specification supplied or approved by the Customer.
12. LIMITATION OF LIABILITY
12.1. The following provisions and the provisions of condition 10 set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
• 12.1.1. Any breach of these terms and conditions.
• 12.1.2. Any representation, statement or tortious act or omission, including negligence arising under or in connection with the Contract.
12.2. the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price of the Goods, subject to price revisions, and transport costs.
12.3. The Company shall not be liable to the Customer by reason of any representation or any implied warranty, condition or other term or any duty at law or under the express terms of this Contract for any indirect or consequential loss or damage (whether for loss of profit, loss of business, increased production costs, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (whether or not caused by the negligence of the Company, its employees, agents or sub-contractors) which arise out of or in connection with the Contract.
13. SPECIAL MATERIAL AND PRODUCTS
Where Goods are manufactured specially to the Customer’s specification, it is a condition of sale that the Company reserves the right to deliver, and charge for, 10 per cent (10%) more or less than the quantity ordered. Unless otherwise agreed in writing the Company does not accept any restriction of its rights to manufacture, sell or offer any other customers, goods which may be manufactured specially for a specific customer or customers or goods of like pattern.
In the case of such goods manufactured specially to the Customer’s specification the Customer shall indemnify the Company against all losses and damages awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other intellectual property rights of any person with results from the Company’s use of the Customer’s specification.
14. INTELLECTUAL PROPERTY
All patent, copyright, design, trade mark or other intellectual property rights in the Goods are and shall remain vested in the Company and nothing in these terms and conditions shall be construed as granting to the Customer a licence or other right of manufacture of the Goods.
Goods manufactured under Customer’s design are not included in these limitations, provided that the Company has accepted the Customer’s rights previously.
15. LEGAL CONSTRUCTION
These conditions and the Contract shall in all respects be construed and operate in accordance with law applied in Catalonia, and the parties hereto submit to the exclusive jurisdiction of the Barcelona’s Courts.
16. ELECTRONIC INFORMATION
Any information provided electronically by the Company is provided ‘as is’ and without warranties of any kind express or implied. Such information is the copyright of the Company, and may be used solely in connection with making purchases from the Company and not for any other purpose.
17.1. The Company employees or agents are not authorised to make any representations or give any advice or recommendations concerning the goods unless confirmed by the Company in writing. Without prejudice to condition 12(c), when entering into any contract the Customer acknowledges that it does not rely on and waives any claims for breach of, any such representation, advice, or recommendation which are not so confirmed.
17.2. The Company shall, without prejudice to any other right or remedy available to it, be entitled to terminate the Contract or suspend any further deliveries under Contract without any liability to the Customer, or if Goods have been delivered and not paid for immediately demand payment of the price due, in any of the following circumstances:
• 17.2.1. The Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation or has passed a winding-up petition or ordered against it a winding up order (other than for an amalgamation or reconstruction); or
• 17.2.2. An encumbrance takes possession of, or a receiver is appointed over, any of the property or assets of the Customer: or
• 17.2.3. The Customer ceases, or threatens to cease, to carry on business: or
• 17.2.4. The Company reasonably apprehends that any of the events mentioned above are about to occur.
17.3. The headings in these terms and conditions are for convenience only and shall not affect their interpretation.
17.4. Any notice must be made at headquarter of each party or in its principal place of business. Any communication made by fax shall be deemed received on despatch, provided that an ordinary response is received by the sender. Communication by electronic mail will be valid if sent to the addresses indicated as valid by each party.
17.5. Failure by the Company to enforce or partially enforce any provision of this Contract will not be construed as a waiver of any of its rights under this Contract.
17.6. This Contract is personal to the Customer who may not assign, license or sub-contract all or any of its rights or obligations under this Contract without the Company’s prior written consent. The Company may assign, license or sub-contract all or any part of its rights or obligations, including receivables, under this Contract without the Customer’s consent.
17.7. The parties agree that, in case of differences between this translation and the original version of TGB Sale Conditions, the second will prevail.