GENERAL CONDITIONS OF SALES AND WARRANTIES
1.-PREAMBLE.
1.1. The present General Conditions of Sale and Guarantee (the “Conditions”) will govern for the contracts of sale of machines, accessories, spare parts and services marketed by GOTAPPING, S.L. (hereinafter GOTAPPING, the manufacturer or the seller) to its clients, insofar as the contractors refer to them and without prejudice to the particular clauses that, where appropriate, may establish them and that will prevail over these Conditions General.
1.2. It will be understood that the parties have referred to these Conditions not only when they expressly state it in a particular contract of sale or firm order accepted by the Client, but also when said referral has formed part of the GOTAPPING offer through the corresponding budget or other commercial documents, such as catalogs, brochures or invoices or in the legal notices contained on the GOTAPPING website www.GOTAPpING.es.
1.3. In what is not expressly agreed in a particular contract, and in what is not foreseen in the stipulations of these General Conditions, both parties submit, in the case of international sales, to the Vienna Convention of April 11, 1980 on sales contracts international merchandise.
2. PERFECTION OF THE CONTRACT.
2.1. The contract will be considered perfected from the moment that GOTAPPING formulates in writing its acceptance of the order, proceeding with it. Likewise, the contract will be considered perfected by the Client’s acceptance of the firm offer or confirmation of the order to GOTAPPING, even though this does not occur expressly, but by the performance of conclusive acts that reveal the agreement of wills, such as the beginning of operations with the consent of the Client, the payment of an advance or the opening of a documentary credit, among others.
2.2. Any modification, alteration or amendment of the contract will require, in order to be valid, the written acceptance of both parties.
3. PURPOSE OF THE CONTRACT.
3.1. The basic object of the sales contracts to which these conditions apply are machines, as well as GOTAPPING’s lines of machines and facilities. Likewise, the parts, components, parts of machines, consumable finished products and any other material or immaterial property related to them, including software, are the object of the contract. All of this is generically called “the machinery” in this document.
3.2. The services of installation and assembly, commissioning, training and advice, maintenance and technical assistance, are also the subject of the contract, in the manner regulated in these same General Conditions.
4. PLANS, DESIGNS AND DESCRIPTIVE DOCUMENTS.
4.1. All the information, in images or written, by way of example, but not limitation, the weights, dimensions, capacities, prices, performances and other data of the machinery collected on the corporate website (www.GOTAPpING.es), as well as its catalogs , prospectuses, circulars, price lists and other advertising material, are illustrative in nature and will not be binding, unless the budget, firm order or contract expressly refers to them. Notwithstanding the foregoing, the information regarding yields and capacities will always be considered approximate and will be considered fulfilled as long as the results achieved reach 80% of the expected results based on the information provided by GOTAPPING.
4.2. The plans, designs, manuals, information or technical documents on the machinery, software or any other element object of the contract, sent to the Client before or after the conclusion of the contract, will remain the exclusive property of GOTAPPING, for the exclusive use of the user to the specific purposes of the contract, and may not be used for non-contractual purposes, nor copied, reproduced, transferred or communicated to third parties, by the Client without the prior written consent of GOTAPPING.
5.-PRICES AND METHOD OF PAYMENT.
5.1. Prices are net for machinery made available to the Client at the GOTAPPING factory or at the place designated by GOTAPPING (INCOTERM: EX-WORKS (FRANCO FÁBRICA)). The applicable tax will be added to the price stipulated in the order.
5.2. If during the construction process of the machinery subject to the offer, the prices of raw materials increase due to force majeure or any natural catastrophe that causes the market to fluctuate, GOTAPPING will assume the increase up to 30%, in terms of the increase exceeds 30% GOTAPPING may modify the offer to reflect these increases, previously informing the Client thereof. However, the client may terminate the contract within 5 days from notification of the price increase by GOTAPPING, without being able to claim any compensation for this cause.
5.3. GOTAPPING machinery is manufactured to order and is adapted to the circumstances of the Client, so it can hardly be used for other orders. Therefore, in case of cancellation of the contract or return of the machinery, for reasons not attributable to GOTAPPING, GOTAPPING will keep, as compensation, the initial delivery of 30%. Likewise, the client will be charged the additional costs of any modification of the order, once it has been processed through its acceptance.
5.4. Except for other modalities established in the contract, budget or accepted order, and as a general rule, the form of payment will consist of the delivery of an advance payment or advance payment of 30% of the price in advance of the signature or acceptance of the order and the rest of the pending amount before the shipment of the machinery. Spare parts will be paid in advance for the total amount before dispatch.
5.5. The delay on the part of the Client in the dispatch, or in his case reception of the machinery, will not give the client the right to delay the fulfillment of his agreed payment obligations.
5.6. The Client may not unilaterally withhold or reduce payments for claims and demands presented or for any other circumstance. Neither can payments be unilaterally modified for the lack of accessory parts or for subsequent work carried out in compliance with the guarantee obligation.
5.7. In case of delay in the fulfillment of the agreed payment obligations, GOTAPPING may charge the Client the corresponding deferment interest, applying a daily delay interest equal to the legal interest of the money in force at any time.
6.-DELIVERY AND TRANSMISSION OF RISK.
6.1. As long as nothing else is indicated in the firm offer or order confirmed by GOTAPPING, the transport of the machinery will be at the Client’s risk and expense, under INCOTERM conditions: EX-WORKS (FRANCO FÁBRICA) at the GOTAPPING factory. The Client will assume the possible losses during the transport and will take charge of the freight and insurance of the same.
6.2. The risks are transferred to the Client as established in INCOTERM: EX-WORKS (FRANCO FÁBRICA) agreed. GOTAPPING is not responsible in any case for the loss or damage suffered by the machinery once the transfer of risks has occurred. The Client will in no case be freed from the obligation to pay the price when the disappearance or damage to the machinery occurs once the risk has been transferred.
6.3. GOTAPPING will communicate to the Client the date and place of the provision of the machinery so that he can take charge of it. This communication will be made in advance, so that the Client can adopt the measures normally necessary in these cases. If the shipment is delayed for reasons beyond GOTAPPING, the risk will pass to the Client from the date of making available. If you do not remove the machinery within a maximum period of 15 days from said communication, storage costs will be charged, without prejudice to the transfer of risks.
6.4. The cost of the assembly and installation of the machinery, as well as the start-up, are at the Client’s expense, as long as nothing else is indicated in the firm offer / s or order accepted by GOTAPPING. Likewise, the risk included in the accident insurance during assembly rests with the Client. The Client is obliged to provide the necessary personnel and auxiliary means during the assembly, even if this were on behalf of GOTAPPING.
6.5. Unless the Client, when placing his order, informs GOTAPPING about its particular rules and requirements regarding the execution of the supply, assembly, installation and prevention of accidents, these will be carried out under the usual rules of GOTAPPING.
6.6 GOTAPPING is obliged to start up the system so that the Customer verifies that it is delivered in perfect working order. If 15 days have elapsed since the system was put into operation without the Client having notified any incident to GOTAPPING, it will be understood that said start-up has been satisfactory and fully accepted by the Client.
6.7. The buildings, warehouse, warehouse or other structures where the GOTAPPING facility and machinery are to be located must meet the conditions previously indicated by GOTAPPING. The Client must, at his own risk and expense, manage and obtain at his own expense the permits, licenses and authorizations necessary for the modifications that may be necessary in order to adapt to the conditions indicated by GOTAPPING, allowing entry and inspection for verification. . In the event that the conditions indicated by GOTAPPING were not fulfilled by the Client, GOTAPPING will be either exempt from any responsibility or exempt from carrying out the assembly until these conditions are met, at its choice.
6.8. Any reference to INCOTERMS, whether express, or corresponds to what said terms regulate, will be understood according to the INCOTERMS of the International Chamber of Commerce (http://www.iccspain.org), according to the text in force at the time of the execution of the contract, with the integrations or derogations provided for in these Conditions, as well as those that may be agreed upon by the parties in writing In case of any interpretative doubt, INCOTERM will be applied, which involves a lesser extent of risks and costs for GOTAPPING .
7.-PROPERTY RESERVATION.
7.1. The machinery sold will be the property of GOTAPPING while its total amount has not been satisfied, reserving its domain.
7.2. The Client is obliged to communicate to GOTAPPING, by burofax, telegram, registered letter or other reliable means of the content and date, the judicial procedures or other claims of any nature that, raised at the request of third parties, affected the machinery. Likewise, it is obliged to declare to all those who attempt any embargo or retention of the machinery, that its property belongs exclusively to GOTAPPING and will collaborate to establish the necessary measures for the protection of the property right of GOTAPPING.
7.3. GOTAPPING is authorized to carry out, on behalf of the Client, all the formalities necessary to make the property reservation in any way opposable to third parties. In particular, GOTAPPING is empowered to make, by itself or through its dependents, as many inspections as it deems necessary to preserve its ownership of the machinery.
7.4. The Client may not sell, assign, lease, encumber, guarantee or transfer the machinery from his home or warehouse, without having previously paid the price in full to GOTAPPING, except with his express written consent.
7.5. In case of breach of the Client’s obligations set forth in this agreement, GOTAPPING will have the right to terminate the contract with immediate effect or demand its fulfillment, at its choice. In the event of a resolution, GOTAPPING may withdraw the machinery that it has delivered to the Client, keeping as a penalty the amounts that the Client has delivered on account of its obligations. Likewise, if deferred payment conditions are agreed in the sale, the non-payment of two of the installments will result in all the remaining ones being considered as overdue and immediately due.
7.6. The penalties stipulated in the preceding paragraph shall not be an obstacle for GOTAPPING, due to manifest superior damage, to claim damages for a greater amount.
7.7. Once the payments for their total amount have been fulfilled and satisfied, GOTAPPING will issue the Client the appropriate payment letter in which he transfers the ownership and ownership of the machinery to the Client.
7.8. The reservation of property will not affect the transfer of risk described in article 6.
8.-DELIVERY TIME.
8.1. The delivery terms will run from the date that is later between the following: a) the date on which the contract has been perfected; b) the date on which GOTAPPING receives the advance, if the contract establishes that payment.
8.2. Delivery dates are considered approximate in favor of GOTAPPING and, in any case, with a normal tolerance margin. The Client may terminate the contract only after the delivery date of the machinery has been exceeded in ninety (90) days, and in any case not without first having informed GOTAPPING of its intention by registered letter with receipt notice, granting it a 30 days from the date of receipt. Within this thirty (30) day period, GOTAPPING may deliver the machinery specified in the Client’s communication, without owing any compensation or indemnity to the Client.
8.3. The delivery date will be automatically extended for a period equal to the Client’s delay in fulfilling the following obligations: a) payment of the part of the price that the Client owes as an advance or payment on account; b) opening by the Client of the documentary credit agreed in the contract; c) delay in the communication of performance standards, technical data or other instructions necessary for the finishing, assembly or installation of the machinery; d) in case of modifications of the machinery, agreed between the parties after the date of conclusion of the contract, the delivery date will be automatically extended for the period reasonably necessary to carry out such modifications.
8.4. In case of force majeure or impediment of another nature independent of the will of the parties, that makes the delivery temporarily impossible or excessively onerous, the date of the same will be extended for a period equal to the duration of said cause. GOTAPPING, once the impediment is known, must notify the Client in a reasonable time of its existence and its extinction. The causes that are expressed in this section will not give rise to compensation or indemnity neither for GOTAPPING nor for the Client.
9.-GUARANTEE.
9.1. GOTAPPING undertakes to deliver to the Customer the machinery that is in accordance with the contract, responding to the Customer for any lack of conformity that exists at the time of delivery of the product.
9.2. GOTAPPING is obliged to correct any operating defect arising from a defect in design, materials or manufacture, with the limitations established by the provisions that follow. This obligation refers only to the warranty period that will be extended for a period of one (1) year from the date of commissioning of the system. If during this period a part breaks or deteriorates due to a defect in the material, it will be replaced by another part with similar or better characteristics and functionalities, the transportation and assembly costs being attributable to GOTAPPING.
9.3. GOTAPPING is exempt from liability for vices derived from defects caused by normal wear and tear, merely aesthetic or that do not affect the functionality of the machinery or its components, as well as those attributable to some of the following causes: a) that the client has made an incorrect use of the supplied machinery or outside the normal conditions provided in the contract; b) the use or operation without following the instructions and normal operating procedures or instructions that the seller issues at any time; c) alterations, modifications, repairs and alterations or other work carried out by non-GOTAPPING personnel of machinery manufactured or supplied by GOTAPPING without their express written consent; d) the fact that the client does not adequately maintain any equipment or operating system in which the software is installed; e) abnormal or incorrect conditions of use of machinery or software (including interruption or anomaly in the electrical system and floods); f) the failure resulting from using the machinery with other incompatible software or hardware; g) the breach by the client of the obligations assumed by him in this contract.
9.4. In order to invoke the guarantee benefit, it is required that: a) the Client communicate in writing the fault or failure within 48 hours of its assessment, providing information as specific as possible about the anomaly and its causes, if known, giving all class of facilities for checking and correction; b) Any liability on the part of GOTAPPING is subject to compliance with the payment conditions and other obligations that the Client has under the Contract.
9.5. The client acknowledges that the obligations and responsibilities of GOTAPPING are defined in their entirety and exclusively in these Conditions.
9.6. The reforms and adaptations carried out in the machinery on the occasion of assembly due to conditions of the premises or the Customer’s convenience, even if these are carried out by the manufacturer’s mechanics, will not have any guarantee or responsibility on the part of GOTAPPING, unless they are expressly and by written accepted by GOTAPPING.
9.7. GOTAPPING guarantees that all the documentation supplied with the acquired machinery will contain the information and materials that are reasonably needed to assist the client in the use and maintenance of the machinery.
9.8. Carrying out warranty repairs will not lead to any extension of the maximum term thereof, except for renewed or replacement parts, which will be guaranteed under the same terms and conditions as the original and for a warranty period similar to that provided in section 9.2.
9.9. In relation to the parts of the product that were not original of GOTAPPING, but acquired from third parties, the responsibility of GOTAPPING will be limited to the warranty claims that it itself had against its supplier. Repair orders, as well as modifications to machinery that GOTAPPING makes on used or manufactured products, will not be guaranteed.
9.10. The defective parts replaced will be available to GOTAPPING if it so required.
10.-LIABILITY OF GOTAPPING.
10.1. GOTAPPING, is not responsible for any incident due to inappropriate, incorrect or out of specification use or damage related directly or indirectly to its own products. Neither will it be responsible for lost profits, loss of sales, loss of income, loss of software or data, loss of use of computer equipment, loss or waste of time of managerial or other personnel, nor of direct, emerging or derived damages from special circumstances. , whatever they are. Except when stated in the contract, there will be no responsibility for loss of production, loss of profits, loss of use, loss of contracts or for any direct or indirect economic loss.
10.2. Any liability that may derive from the machinery, for events subsequent to the transfer of the risk to the Client, including eventual damages to persons or things (even when said things are parts or accessory elements of the machine), will be the sole responsibility of the Client, who It also undertakes to insure any risk in an appropriate manner, without the right of repetition in relation to GOTAPPING. The Client grants from this moment his consent to be called in case in case of procedure acted against GOTAPPING for the responsibilities established in the present article.
11.-SOFTWARE LICENSE.
11.1. GOTAPPING, grants in favor of the Client a license for the use of personal, non-transferable and non-exclusive software to use and execute with the machinery, in such a way as to make its operation possible, in accordance with its specifications.
11.2. The use of the licensed software is restricted to the address of the installation and the operating conditions of the programs that are specified for this purpose in the documentation provided with the software.
11.3. GOTAPPING, is the owner of the industrial or intellectual property rights over the software and the other rights over it, for which the Client only licenses the right to use the software with its full and final payment. Likewise, GOTAPPING reserves all the rights that have not been expressly assigned under these Conditions and thus, by way of example but not limitation, the rights of reproduction, distribution, public communication, transformation and distribution. Customer shall have no right to market or sub-license the licensed software in any way.
11.4. GOTAPPING will inform the Client of any update, or new version that implies an improvement of the licensed software so that it can update it.
11.5. The Client, within five days after the installation of the programs, will express in writing to GOTAPPING the conformity to the technical specifications of the software operation. If after said term, the Client has not expressed his agreement, it will be understood that the programs have been accepted.
11.6. The Client is obliged not to access the source code of the software or to carry out, directly or through third parties, derivative works based on the software, or any operation that may result from derivative works, adaptations, alterations, modifications, translations, decompilations or decoding of the software or any of its properties, except with the prior written authorization of GOTAPPING. This obligation will not operate in relation to software published under GPL (General Public License) or other open source license.
11.7. GOTAPPING is not responsible for any damage or loss in any of the Customer’s computer media derived from the use of the software.
11.8. GOTAPPING guarantees the Client the good operational state of the software as long as the Client uses it in accordance with its technical specifications and the instructions given by GOTAPPING. This guarantee will not cover in any case the damages or problems caused in the software by a negligent use of the same or contrary to said specifications and instructions, nor those derived from events beyond the reasonable control of GOTAPPING. Likewise, GOTAPPING will not assume any responsibility for reparation for problems or damages produced in versions of the software altered or not authorized by GOTAPPING.
11.9. This warranty lasts for one (1) year counted from the system start-up. Any complement, update or replacement of the software carried out by GOTAPPING during the warranty period will be covered for the remainder of said period, or failing that, for an additional period of thirty (30) days, resulting in the period that is more extensive.
11.10. GOTAPPING guarantees telephone technical advice and, where appropriate, assistance at the Customer’s facilities in everything related to the operation and operation of the licensed software during the warranty period.
11.11. The license granted to the client will expire when, due to revision, update or replacement of the software, a new license is delivered to it. The license will also be terminated for breach of the Client of the obligations assumed in these Conditions. In case of breach of obligations by the Client, GOTAPPING reserves its right to suspend the use of the license.
12.-PROTECTION OF PERSONAL DATA.
12.1. In accordance with the Law on Protection of Personal Data, we inform you of the existence of a file owned by GOTAPPING in which the personal data of customers will be collected for the purposes of fulfilling the contract.
12.2. In turn, we inform you of the possibility that the Client has to exercise the rights of access, cancellation, opposition and rectification set forth in the aforementioned Law through a letter that can be addressed to the headquarters of GOTAPPING, S.L. located at Partida Calle Nueva 6 20150 Villabona – Guipúzcoa – Spain, Tel./Fax: +34 639150609, E-mail: go-tap@go-tap.es
13.-CONFIDENTIALITY.
13.1. All information owned by GOTAPPING that it must share with the Client, regarding the machinery, software and characteristics of GOTAPPING’s commercial offer and services, communications between the parties or any other information obtained by the Client by virtue of business relationships.
13.2. The Client agrees to adopt the necessary measures to ensure the confidential treatment of the information that GOTAPPING is preparing to transmit to it. Specifically, the Client agrees to allow access to confidential written, oral information, whether provided by printed, telematic means, or in any other way, only to those individuals or legal entities that need their information for the development of tasks strictly necessary for the fulfillment of the agreed Contract, also warning them of their obligation of confidentiality and ensuring compliance with it. Likewise, it will be responsible for the custody of confidential information and will respond, if any, for the disclosure of such knowledge by the workers or collaborators who are at their service or who have had access to said knowledge for their cause or under their responsibility.
13.3. Outside of the above assumption, the Client undertakes not to disclose or disclose, in any way, without the express written authorization of GOTAPPING, to any third parties, especially competitors of GOTAPPING, the confidential information, whether technical, commercial, economic or of another type, that GOTAPPING has provided you by virtue of the commercial relations between the parties.
13.4. It is also forbidden for the Client to carry out or allow the reverse engineering of both the machinery and the software.
13.5. The breach of this confidentiality agreement by the Client and / or its administrators, managers or employees, as well as any third party, whether natural or legal person, directly or indirectly linked to them, will lead to the unilateral resolution of the present contract without any of the parties being able to demand from the other the fulfillment of what has been agreed, without prejudice to the compensation that GOTAPPING of the Client may demand for the damages caused.
13.6 This obligation will be maintained even after the end of any business relationship between GOTAPPING and the Client.
14.-INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS.
14.1. GOTAPPING is the owner of valuable know-how related to the manufacture of machinery for the agri-food industry and complete lines for dried fruits and protects the results of its R & D & i through patents throughout the world.
14.2. By purchasing the machinery that is the object of this contract, the Client acknowledges the industrial and intellectual property of GOTAPPING over them, and undertakes to respect and safeguard it with all the measures at its disposal, applying the greatest possible diligence. Likewise, it undertakes to inform GOTAPPING of any improper use of which it has news, made by third parties, of patents, trademarks and other industrial and intellectual property rights owned by GOTAPPING
14.3. The Client agrees to inform GOTAPPING in writing of any modification or improvement obtained in the machinery. The industrial property rights related to such modifications or improvements will correspond to GOTAPPING, which may offer fair compensation to the Client based on their value.
14.4. GOTAPPING undertakes to provide the Client with all the information, documentation, technical knowledge and know-how necessary for the commissioning of the machinery, as well as to train the Client’s employees in its use.
14.5. In no case may a contract of sale of the machinery be interpreted as a license to manufacture or market the machinery, components or facilities owned by GOTAPPING or on the information and technical knowledge, or know-how, essential for its start-up and effective performance. .
15.-APPLICABLE LEGISLATION AND COMPETENT COURT.
The realization of any order and formalization of purchase implies the acceptance by the Client of these Conditions in all its clauses, submitting for any incidents that may arise from the contracted operation, after renouncing its own jurisdiction, Spanish legislation and the competence of the Donostia-San Sebastián Courts (Gipuzkoa – Spain).
