1.- Object and scope of application
1.1. These General Conditions of Sale and Provision of Services (hereinafter the «GGCC») will govern the contractual relationships between Brandt Europe, S.L. (hereinafter, «BRANDT») and its customers (hereinafter, the «Customer»), resulting from the sales of products and services included in the BRANDT catalog.
1.2. The GGCC exclude the application of any general purchase conditions of the Customer.
1.3. The Customer accepts without reservation the GGCC when formulating an order to BRANDT, having prior knowledge of its contents as the Customer has been informed that they are published on the website http://brandteurope.com.
1.4. The orders will be governed by the GGCC that will be completed, if applicable, by the particular conditions that may be agreed between BRANDT and the Customer. These particular conditions will prevail over the GGCC when BRANDT has expressly accepted them in writing.
1.5. Unless it is not applicable, the Customer must be duly registered in the Official Registry of Producers and Operators of Phytosanitary Defense Means (or any other equivalent, or substitute thereof) in order to provide phytosanitary defense modes, perform phytosanitary treatments, advise on integrated management of pests to farms, entities or individuals or manipulate and use plant protection products for professional use, this registration being the sole responsibility of the Client. Likewise, the Customer will only provide, advise or manipulate those products whose toxicity is covered by the maximum authorized toxicity degree that appears on its registration in said registry.
1.6. BRANDT will sell its products or provide its services with a non-exclusive nature, so BRANDT will be able to offer its products and provide its services to any other company or professional that may require it.
2.1. All offers made by BRANDT staff are considered a proposal to the Customer and therefore have no binding effects. Any sample provided to the Customer will be delivered exclusively for informative purposes and will not imply in any way any condition or express guarantee of quality, marketability, suitability or convenience of the product.
2.2. The order of the goods or the provision of services made by the Customer to BRANDT is considered a binding offer of a contract. The Customer may place their orders by telephone, telematics, email or through their sales representatives.
2.3. For the agreement to sell the products to be understood as perfected and binding, it must be expressly accepted by BRANDT. Once the order is accepted, the Customer will not be able to make total or partial cancellations of the same unless expressly agreed by the parties.
2.4. BRANDT has no obligation to accept any order and, therefore, reserves the right to reject it, without incurring any responsibility for it.
3.- Provision of services by BRANDT
3.1. BRANDT may provide services consisting in the manufacture, packaging and labeling of products to third parties under the Customer’s brand.
3.2. All material, formulation and information delivered by the Customer to BRANDT will be understood to be optimal and adequate and in perfect condition. The weights, dimensions, capacities, compositions, technical specifications, characteristics and configurations referring to the Customer’s products included in catalogs, brochures provided by the Customer to BRANDT are binding, and the Customer is the only responsible for the accuracy and veracity of the same.
3.3. As long as the Customer specifies in writing the products with a specific design, data or manufacturing method, BRANDT will execute said specifications provided they have been accepted in writing. BRANDT will not vary said formulations, drawings or designs without the prior consent of the Customer and provided that such modifications are not substantial or otherwise, with the consent of the Customer, in which case these modifications will not constitute a breach of contract and will not imply any responsibility for BRANDT.
3.4. BRANDT will not be responsible for any breach in the performance or defective execution of the products if it is a consequence of errors, incompetence or other inaccuracies, as well as delays in the data and/or information, in the broadest sense, provided by, or on behalf of the Customer.
3.5. The examination by BRANDT of such data/information will not limit, in any case the responsibility of the Customer, unless BRANDT specifically accepts in writing such responsibility.
3.6. The Customer shall indemnify BRANDT for all costs, damages and losses of any kind that are generated as a result of the manufacture of the product in accordance with the technical characteristics and information provided by the Customer, or when there is infringement of the patent, trademarks or industrial and intellectual property models.
4.1. The deadlines for delivery of orders for products or services shall be deemed fixed on an approximate basis, and in no case of essential compliance. Therefore, BRANDT will not be liable to the Customer for any delays in the delivery of the products.
4.2. In any case, BRANDT will try to attend and supply the orders of products within the terms agreed with the Customer, provided that their resources and production capacities allow it. Likewise, BRANDT may make partial deliveries of the order, with each partial delivery accruing the corresponding payment obligation for the Customer.
5.1. Unless the parties agree otherwise, BRANDT will handle the transportation of the goods. In order to carry out the transport, BRANDT has the necessary resources, its own or those of others, in accordance with the legal obligations and responsibilities.
5.2. The transport agencies hired by BRANDT will be responsible for compliance with all legal and administrative requirements for the development of the activity, exempting BRANDT from any liability that for the non-compliance of these or administrative sanctions that in the development of these transports could give place. The transport agencies hired by BRANDT to carry out the transport to the Customer will have the necessary civil liability insurance.
5.3. BRANDT carefully examines the goods before packing and delivery to the carrier, thus guaranteeing the suitability of the same. Any failure or breakage suffered by the goods during transport will be the responsibility of the carrier, the Customer must inform this fact, as soon as possible, in writing, to BRANDT, before proceeding to the reception of the order or admit it with reservations. The transport company will respond to any delay, deterioration or loss of the merchandise that is imputable to itself, except fortuitous event or force majeure.
5.4. The Customer will be responsible for any delay, deterioration or loss of the goods that is attributable to it, except in case of unforeseeable circumstances or force majeure, in case they are responsible for transporting the goods. In those in which the transport is carried out by the Customer, either through its own means, or through contracting with third parties, the Customer must guarantee that the carrier complies with all legal and administrative requirements for the development of activity, as well as minimum quality standards. In the event that these requirements are not considered sufficient by BRANDT, the latter may refuse to deliver the goods, informing the Customer so that it may correct the defects appreciated, without any amount being claimed from BRANDT under any circumstances.
5.5. In any case, it will be considered, for all purposes, that the goods have been received and accepted by the Customer if he begins to use them.
6.- Price and payment conditions
6.1. The sale prices of the products will be those that are fixed in the offers and rates of BRANDT, communicated to the Customer; or in the particular conditions agreed between the parties. To these prices the corresponding taxes must be added.
6.2. BRANDT may modify the sale prices of the products or services at any time. The increase in the sale price will not affect those orders in course that have been previously accepted by BRANDT. In the event that the Customer makes an order for products with a wrong price, BRANDT will communicate the correct price and, if applicable, their acceptance to take the order, provided that the Customer does not expressly reject it in the following two days.
6.3. The Customer will pay the corresponding price for each order of the products, by bank transfer within the agreed term, or failing that, within sixty (60) days from the date of the invoice that will be issued by BRANDT, which will coincide, in principle, with the date of issue of the products.
6.4. In case of total or partial non-payment of the price of a product order at the expiration date, and in application of Law 3/2004 of December 29, which establishes anti-delinquency measures in commercial operations, the amount due and not paid will accrue the corresponding default interest without notice of expiration or any notice from BRANDT, in addition to the Customer’s account of the return expenses that BRANDT may incur. Likewise, BRANDT shall be entitled to suspend or cancel the pending deliveries of products to the Customer, while the order is not paid whose payment is due and required, or to require the advance payment of any new order.
7.- Transfer of ownership
7.1. The transfer of ownership to the Customer will be made at the time of delivery. Unless otherwise agreed, the Customer acquires ownership of the products from the moment they are downloaded at the place indicated by the Customer.
7.2. If the transport is organized or carried out by the Customer, the transfer of the property will be made from the provision of the goods to the carrier indicated by the Customer.
8.- Conformity and claims
8.1. The conformity of the Customer, in terms of the delivered quantity of products with respect to an order in question, will be made by signing the corresponding delivery note at the same time of delivery. If the Customer has any objection regarding the quantity of the product received, it must be consigned in the delivery note at the time of receiving the products. No claim will be admitted due to quantity defect after this moment.
8.2. The Customer must examine the quality of the goods immediately upon receipt to verify their compliance with the order and the absence of apparent or hidden defects in the same. In any case, upon receipt of the products, the Customer will have a period of four (4) days to refuse the product and claim BRANDT for a possible defect in the quality of the products delivered.
8.3. BRANDT will not accept any refusal or claims received after the aforementioned deadlines.
8.4. If the Customer’s claim is justified and received in time, BRANDT will only and exclusively have the obligation to replace the defective products with others that replace them, and will not be responsible for any damage or injury that could be derived for the Customer from the delay or lack of delivery of conforming products, in particular of lost profits, production losses or profits. The eventual substitution of the products will not entail the return of non-conforming products, unless BRANDT so authorizes or expressly requests.
8.5. When the Customer has unjustifiably refused the goods placed at his disposal, BRANDT may choose between (i) proceeding with caution to the storage or deposit in consignment of the merchandise, being the expenses that said deposit or consignment generate from the Customer’s charge; (ii) terminate the contract with a claim for damages, it being understood that said compensation includes not only the full price of the merchandise served, but also the interests, expenses, transportation costs, storage costs and any other incurred due to or as a result of consequence of the Customer’s unwarranted refusal; and (iii) the two previous options, simultaneously or successively.
8.6. In no case BRANDT will respond for damages caused to the merchandise itself, to other goods or to the persons as a consequence of an incorrect or inadequate use, employment or application, storage and/or transportation of its products, of the modifications or alterations made in the products by the Customer, or of cases of fortuitous event or force majeure, or any other circumstances beyond the control of BRANDT.
8.7. The Customer shall be responsible for ensuring that the products purchased from BRANDT comply with the legislation and regulations in force in the country, region or territory of destination, especially in relation to import, delivery, storage and use.
9.1. BRANDT does not accept returns of orders already served, unless otherwise agreed by the parties or that there are defects, always in accordance with the provisions of these GGCC.
9.2. Returns or shipments to BRANDT facilities must be expressly authorized by BRANDT, and must always be made by the Customer at postage prepaid, without prejudice to the fact that, in case of a justified defect attributable to BRANDT, the latter reimburses the cost to the Customer.
10.1. The Customer is the only responsible for the choice of the contracted product or service, as well as the use or function to which it is intended. Therefore, BRANDT is not responsible or guarantees that the product or service is suitable for the technical applications intended by the Customer, or to achieve, in whole or in part, the objectives set by it when placing your order. Any technical advice provided by BRANDT verbally, in writing or by conducting tests, before and/or during the use of the product or service, is provided in good faith and does not constitute a guarantee of suitability for the processes and uses for which it is intended.
10.2. If BRANDT is required to assume any liability for damages suffered by the Customer, it will be limited to a maximum of two times the amount corresponding to the order of the product or service causing the damage. In no case will BRANDT be liable for losses or incidental damages, direct or indirect, loss of profits, loss of production or profits, risks of product development, among others.
10.3. The Customer will be the only responsible, expressly exonerating BRANDT, for any damages that may be caused to its own employees or third parties due to improper use, storage, conservation, manipulation or transformation of the products; in particular, and without limitation, when you have not observed the indications, warnings or instructions that BRANDT has been able to provide you in this regard.
10.4. BRANDT will not be liable under any circumstances to third parties for reasons beyond its control, including the failure of the Customer to comply with the regulations applicable to products and chemical substances. The Customer shall hold BRANDT harmless from all liability for any claims, damages and/or losses arising, directly or indirectly, from breach of the obligations assumed by the Customer by virtue of the contractual relationship.
The Customer’s claims based on defects in quantity or quality or for any damage will expire after one (1) year from the transfer of the risk to the Customer in accordance with the provisions of section 7 of these GGCC.
12.- Intellectual or Industrial Property Rights
12.1. The parties agree not to use any right of Intellectual or Industrial Property owned or licensed by the opposing party, including their name or that of any of their products, in any internal or external publication or in any advertisement, material or immaterial, without the prior written consent of the opposing party. No term of these GGCC shall be construed as a license, assignment or concession of a pre-existing Intellectual Property right.
12.2. The Customer shall hold BRANDT harmless against any claim for infringement of Intellectual Property rights or based on unfair competition derived from the products or services contracted.
13.- Use of brands, packaging and traceability
13.1. All brands and any distinctive signs of BRANDT’s products and services are owned or licensed by BRANDT. The Customer will refrain from reproducing, displaying or using any brand or distinctive sign without the authorization of BRANDT.
13.2. The Customer will not modify or withdraw from the product packaging the registered trademarks, corporate or commercial names, labels or industrial and intellectual property rights of any type corresponding to BRANDT, unless authorized by BRANDT.
13.3. The Customer acknowledges in this act that any commercialization of a product whose label, batch number or date of sale have been eliminated, deleted or modified, represents a serious breach of these GGCC and the contract, which shall be accompanied by the corresponding compensation of damages in favor of BRANDT.
14.- Integrated Management System for Containers and Used Packaging
BRANDT guarantees that the products included in its catalog contribute to the canon regulated in Law 11/1997, of April 24, on Containers and Packaging Waste, on the contrary, auxiliary materials such as pallets, boxes, packaging and shrink wrapping are not they are attached to SIGFITOS, so the Customer is responsible for their custody and delivery for proper environmental management. BRANDT guarantees that the products for domestic use included in its catalog are attached to ECOEMBES.
15.- Force majeure
15.1. BRANDT shall not be liable for any damage, loss, cost or expense arising from, or related to, the delay, restriction, interference or breach of any obligation to the Customer caused by any circumstance beyond its reasonable control, including, without limitation, incidental acts, laws, statutes, ordinances, regulations, legislative measures, governmental decrees or other administrative measures, orders or judgments of any court, earthquake, flood, fire, explosion, war, terrorism, riots, sabotage, accident, epidemic, strike, employer lockout, sit-down strike, work disturbances, difficulty in obtaining labor or necessary raw materials, lack or failure of transportation, damage to the factory or essential machinery, emergency repair or maintenance, breakdown or shortage of services public, delayed delivery or defects in products supplied by suppliers or subcontratists.
15.2. In the event that the event of force majeure continues or is expected to continue for a period exceeding three months after the agreed date, either party shall have the right to rescind the affected party and shall be exempt from any liability to the party contrary.
16.- Cause of resolution
16.1. BRANDT may terminate the contract as of right by the general causes provided by law and those established in these GGCC.
16.2. Notwithstanding the foregoing, the following shall be considered as justified causes for the termination of the contract by BRANDT:
a) Loss or absence of the required licenses and/or non-inclusion or exclusion of the necessary records;
b) Serious and/or repeated breach by the Customer of any of the obligations under his responsibility;
c) Insolvency or liquidation of the Customer;
d) Breach by the Customer of the international or regional regulation that may be applicable, and specifically, but not limited to, the US Foreign Corrupt Practices Act (FCPA) «Foreign Corrupt Practices Act of 1977» «, Legislation relating to money laundering operations and / or prevention of electronic fraud;
e) Breach by the Customer of the organizational model for criminal prevention and/or the ethical and anti-corruption policy of BRANDT;
f) Infraction by the Customer of Intellectual or Industrial Property Law;
g) By judicial or administrative decision that implies the impossibility for any of the parties to execute this contract, and
h) The loss of the Customer’s status and image in the market.
17.- Protection of personal data
17.1. The Customer agrees to respect and comply with their obligations under the LOPD that are applicable at all times to these GGCC, as well as the services provided and / or products delivered.
17.2. In the cases in which the Customer is a natural person, and BRANDT has access to personal data, it will be understood that by signing these GGCC expressly authorizes BRANDT to process the personal data included in the order and those others that were necessary for the fulfillment of the contract, which will be incorporated into an automated file owned by BRANDT, with the purposes that are derived directly from the contractual relationship established between the parties and with the limits derived from the contracted service.
At any time, the Customer may exercise the rights of access, rectification, cancellation, opposition, portability and deletion in relation to the aforementioned data, by addressing his request in writing to BRANDT EUROPE, S.L. Carmona Guadajoz road, km 3,100 cp 41410, Carmona, Sevilla with the reference «Protection of Personal Data» or at the following email address firstname.lastname@example.org.
17.3. BRANDT may have access to personal data on behalf of the Customer only when it is necessary for the sale of a product or delivery of a service.
BRANDT, as the person in charge of the treatment, is a mere intermediary, in that it is limited to treatment (whether by collecting, recording, conserving, processing, modifying, consulting, using, canceling, blocking, deleting or otherwise) of the personal data of ownership and/or responsibility of the Customer. BRANDT will only treat the personal data to which it has access as stipulated in the previous paragraph, according to the instructions of the Customer. It will be presumed that any access to personal data, treatment, destination, communication and use thereof by BRANDT is necessary for the fulfillment of the contract and is carried out following the instructions of the Customer and with his authorization, unless there is a prior written communication in Wrong Way.
BRANDT will not apply or use the personal data to which it has access under the contract for a purpose other than the fulfillment of the contract, nor will it communicate them, even for its conservation, to other persons, except in the case that this is necessary for comply with the obligations derived from the contract (management and advice, transport companies, tax administration, insurance companies) and/or those imposed by the laws or mandatory rules, and/or required to do so by mandate of the competent authority in accordance with law.
Once the contract is finished, the personal data processed by the BRANDT will be returned to the Customer, as well as any support or documents from the Customer that BRANDT is in possession of for the fulfillment of the contract, and in which any data of personal character object of the treatment. Personal data subject to treatment that appear on BRANDT media or documents will be destroyed, although BRANDT may retain, duly blocked, the data object of the treatment as long as they could derive responsibilities from their relationship with the Customer.
It is the Customer’s responsibility to implement the necessary technical and organizational measures to guarantee the security of personal data, which will correspond, according to current regulations at all times, to the security levels of the data object of treatment. BRANDT will apply the same security measures that the Customer has implemented for the personal data to which it has access for its account.
17.4. All products or services included in the order may be subject to subcontracting, total or partial. By signing the GGCC, the Customer authorizes BRANDT the total or partial subcontracting with third parties of the treatments that are necessary for the fulfillment of the contract. In this case, the processing of personal data by the subcontractor must comply with the Customer’s instructions, and the appropriate contract between BRANDT and the subcontractor must be formalized, which will be considered responsible for the treatment with respect to the outsourced services.
17.5. In case it is necessary for the Customer to provide personal data to BRANDT for the proper execution of the contract, the Customer is obliged to obtain the consent of the interested parties for this purpose and provide them with the information provided by the regulations for the protection of personal information. The personal data provided to BRANDT will be included in a file with the sole purpose of managing contractual relationships with the Customer.
17.6. The Customer shall indemnify BRANDT for any loss, damages, interests, sanctions or indemnities that BRANDT is obliged to satisfy, may suffer or may incur as a result of a breach by the Customer of the obligations arising from the present clause and/or breach by you of the provisions in force at any time regarding the protection of personal data
18.1. The Customer will keep in strict confidentiality all the information of which he has knowledge, directly or indirectly, regarding or about BRANDT, its subsidiaries or a third party, and of which it is evident that it is confidential or of which he reasonably must be aware of confidentiality
By way of example and without limiting effects, it will include within the concept of confidential information lists of Customers, information on products, price lists, marketing programs and business development plans, as well as the existence and terms of the contract of sale or purchase, provision of services and all types of information whose unauthorized disclosure could be detrimental to the interests of BRANDT or its subsidiaries, whether or not it is identified as confidential information by BRANDT.
18.2. The confidential information does not include information that (a) was known by the Customer without restriction before being received from BRANDT; (b) is publicly available without the fault of the Customer; (c) is legitimately received by the Customer of a third party without a duty of confidentiality; (d) is independently developed by the Customer without the use or reference to confidential information. A party may disclose confidential information when required to do so by law if it provides reasonable notice to the other party, unless a court orders that the other party not be notified.
18.3. The Customer may not give any form of publicity to the execution of the agreement without prior written permission from BRANDT.
18.4. Upon termination of the contract, or at any other time at the request of BRANDT, the Customer must promptly deliver to BRANDT all confidential information in its possession.
19.-Ethics and anti-corruption policy and model of organization and management for criminal prevention
19.1. Brandt Europe, S.L. is a company belonging to the BRANDT Group, which as a Group has a ethics and anti-corruption policy and a anti-corruption and a model of organization and management for criminal prevention that have been approved internally by the competent government bodies and that results from application to BRANDT. These documents contain the basic principles of action that should govern the operation of the BRANDT activity and all the employees that make up the same. These are documents of essential importance for the BRANDT Group, with all the employees and customers to whom it is applicable, committed to strict compliance with them, and with the defense of the values and principles contained therein.
19.2. In this sense, it is the will of the BRANDT Group that all those persons or companies that have a commercial relationship with the company adhere to the compliance of both the ethical and anti-corruption policy of BRANDT CONSOLIDATED, INC as well as the organization and management model for criminal prevention, with the purpose that these principles and obligations are fulfilled and accepted by all. The ethics and anti-corruption policy of BRANDT CONSOLIDATED, INC and the organization and management model for criminal prevention of the company are available in http://brandteurope.com/POMCP.
20.- Legislation and competent jurisdiction
20.1. The relations between the parties are governed by Spanish law and, especially, with a merely illustrative nature, and not exhaustive, by the following rules:
- Real Decreto 3349/1983, of November 20, approving the sanitary technical regulation for the manufacture, commercialization and use of pesticides.
- Real Decreto 162/1991, of February 8, which modifies the technical-sanitary regulations for the manufacture, commercialization and use of pesticides.
- Real Decreto 363/1995, of March 10, regulation on classification, packaging and labeling of dangerous substances.
- Real Decreto 1311/2012, of September 14, which establishes the framework for action to achieve a sustainable use of phytosanitary products.
- Commission Regulation (EC) No1271/2008 of 16 December 2008 amending Regulation (EC) No 1255/2008 fixing the import duties in the cereals sector applicable from 16 December 2008.
- Decreto 96/2016, of May 3, which regulates the prevention and fight against pests, sustainable use of phytosanitary products, the inspection of equipment for its application and the census of equipment for the application of phytosanitary products is created.
- Ley 16/1987, of July 30, Land Transport Ordinance Law.
- Real Decreto 1211/1990, de 28 de septiembre, Regulation Land Transport Ordinance Law.
20.2. The Customer must comply with the following regulations applicable to US companies: (i) Law on Corrupt Practices Abroad («FCPA»); (ii) any legislation or regulations in force that apply the Convention of the Organization for Economic Cooperation and Development against Bribery of Foreign Public Officials in International Business Transactions; (iii) Exports Law of 1979, 24 U.S.C., (iv)
International Law of Emergency Economic Powers 50 U.S.C. (v) Trade with the Enemy Law, 50 U.S.C; (vi) International Traffic in Arms Regulations («ITAR»); and (vii) the International Boycott Provisions of Section 999 of the Internal Revenue Code of the United States of 1986.
20.3. In addition to the specific legislation indicated above, the Customer declares that the same, or any person related to him, is not included in any of the following lists: (i) list of nationals and specially designated persons blocked, office of control of foreign goods, treasury department of the United States; (ii) list of debarred parties Directorate of commercial defense controls, department of the state of the United States; (iii) list of denied persons, Department of Commerce of the United States; (iv) Entities List, Bureau of Industry and Security, Department of Commerce of the United States; and/or (v) unverified list, industry and security office, United States Department of Commerce.
20.4. The Customer and BRANDT expressly and formally submit, for any conflict or issue arising from the interpretation, compliance and execution of the commercial relationship, to the Courts and Tribunals of Carmona (Seville), expressly waiving their own jurisdiction, in case of differ.
21.- Limitation of action
In case of incompatibility, discrepancy or doubt, interpretative or with respect to its application, between the stipulations of these GGCC and any other normative provisions applicable to the activity object of these GGCC, it should always be resolved, as far as possible , giving prevalence to the will of the parties consigned in the order.
22.- Previous agreements
Any other verbal or written agreements that may have been concluded between the parties prior to the GGCC and that have as their object the content of the GGCC, which completely replaces the former, are null and void.
23.- Partial nullity
In case any of the paragraphs or stipulations of the present GGCC is declared null or non-enforceable by any court, the validity and enforceability of the rest of the contract will not be affected, and the clause or paragraph should be replaced as far as possible. declared null or non-enforceable by another valid and executable that leads to the result closest to that pursued by the clause or paragraph declared null or unenforceable.
24.- Remission of a claim
The lack of exercise by any party of any right, power or measure of protection will not operate as a waiver of the same, nor any partial exercise of it will exclude any subsequent exercise of the same or any other right, power or measure of protection.