1. General terms
1.1 Gas sales and supplies, tanks and equipment, (hereinafter, the “Supply”) to be carried out by Abelló Linde S.A. (hereinafter, referred to as the “Vendor”) shall be governed by the present General Sales Conditions, except in all those matters that are expressly agreed otherwise in the respective offer or in the acceptance of the order and which may constitute the special conditions thereof. Therefore, other conditions that have not been explicitly accepted by the Vendor shall have no legal value of effect whatsoever.
1.2 The present General Conditions shall be considered to have been communicated to the Buyer as of the time at which the latter is informed of the web page address where they can be found or receives an offer from the Vendor, accompanied by these conditions. Alternatively, they shall be regarded as communicated if the Buyer received them previously in the course of his business relations with the Vendor, in which case they shall be considered to have been accepted by the Buyer for all purposes upon placing this order.
2. Intellectual and Industrial Property
The intellectual and/or industrial property of the offer, in all of its terms, and the information included therein, as well as the equipment that is the subject of the Supply, and that of the items, plans, drawings, software, etc., including in or relating thereto, belong to the Vendor or to the Suppliers of same, so that their use by the Buyer for purposes other than the fulfilment of the order, as well as their total or partial reproduction or assignment of use to third parties, are forbidden except with the Vendor’s express prior written consent.
3. Formalisation of Orders and Gas Sales
3.1 The scope of the Supply shall be clearly specified in the Buyer’s order. For it to be considered effective, the order has to receive an express acceptance by the Vendor, with the exception of those cases in which, given the periodic nature of the Supply, this requirement has been deleted by mutual agreement.
3.2 The Supply only includes the equipment items and materials covered by the order, with the exception of the cases in which some documentation, information, back-up or additional services are explicitly included in the Buyer’s order, which has been accepted by the Vendor.
3.3 The weights, dimensions, capacities, technical specifications and configurations referring to the Vendor’s products included in catalogues, brochures, pamphlets and technical literature are of an informative, non-binding nature, with the exception of the cases in which the Vendor accepts a closed specification of the Buyer, which has to form part of the order documents. To this effect, the Buyer will have to comply with the specifications established in the Security Data Sheets, which correspond to the gas orders in the order document, or it can be consulted in the web page www.linde.es
3.4 Modifications and/or variations of the scope, delivery dates or other terms of an order that may be proposed by one of the parties should always be notified to the other party in writing and they will have to be accepted by the other party for them to be valid. Modifications due to changes in applicable legislation, regulations or rules which take place after the date of presentation of the corresponding offer shall also be considered as modifications / variations. Should these modifications and/or variations signify the imposition of additional or more onerous obligations for the Seller, the Seller will have the right to adjust the contractual terms to fully compensate for the consequences of the new and/or modified legislation regulations.
3.5 The products are exclusively of the Buyer’s use, who is not authorised to deliver nor reveal the containers owned by the
Vendor to third parties.
3.6 The vendor must lease the use of the containers of his property.
4.1 The prices of the Supply are net, exclusive of VAT or any other tax, duty or levy, which shall be charged subsequently in the invoice at the respective rates. Unless otherwise stipulated in the purchase order, or an agreement is reached on the matter between the Buyer and the Vendor stemming from their business relation, the prices of the Supply do not include packing, carriage, duties or insurance and they are considered placed at the Vendor’s factory or warehouse. These prices are only valid for the entire lot of materials specified in the offer.
4.2 In the case of offers prior to the order, the prices quoted are valid for one month and in this period they shall be considered fixed on the terms of payment specified in the offer, unless the Supply quoted consists of imported equipment items subject to exchange rate contingences or to the payment of tariffs and duties. In which case the price of the offer would be adjusted accordingly.
4.3 The prices stated in the offer are for the terms of payment specified in that offer. Should these terms of payment were to be modified; the offer prices would be reviewed.
4.4 After completion of the Supply Agreement, the provision applies per day, for containers that have not been returned, according to the rates of the Vendor, in force at all times.
4.5 The containers held by the Buyer in excess of the contract or without contract, shall bear a provision charge, according to Abelló Linde S.A. rates, in force at all times.
4.6 Upon expiration or termination of the Contract, the Buyer is obliged to return the containers, unless both parties establish the renewal.
5. Payment conditions
5.1 The Vendor’s offer or, in the event of there not being one, the Buyer’s order accepted by the Vendor, shall include the terms of payment of the Supply.
The aforementioned payment conditions must respect the terms of Law 15/2010, dated July 5th, modifying Law 3/2004, dated December 29th, which establishes corrective measures to combat delays in payment in commercial transactions, and, in no case may exceed the maximum time limits specified in said Law.
5.2 In absence of a specific agreement, the payment period will be of thirty (30) days, after the delivery date of the corresponding gases, equipment or systems by the Vendor.
5.3 The payment shall be made on the agreed terms to the Vendor’s bank account or by means of another agreed procedure. Payment shall be made without any reduction, such as non-agreed withholdings, discounts, expenses, taxes or duties, or any other deduction.
5.4 If the delivery, installation, start-up or reception of the Supply should be delayed for reasons not attributable to the Vendor, the agreed contractual terms and payment periods shall be maintained.
5.5 In the event of delay in the payments by the Buyer, he will have to pay the Vendor, without any demand and as of the payment due date, the late payment penalty interest, which shall be calculated in accordance with the terms of Article 7 of Law 3/2004 dated December 29th. The payment of this interest shall not discharge the Buyer from the obligation to fulfil all the other payments on the terms agreed.
5.6 If the Buyer should incur delays in the agreed payments, the Vendor may elect to suspend shipment of the Supply or execution of the services associated with it, either temporarily or permanently, without detriment to requiring the Buyer to make the late payments and to claim, when appropriate, additional compensation for this suspension of the Supply or of the execution of the agreed services.
5.7 The presentation of a claim by the Buyer does not entitle him to discontinue or make any deduction in any of the payments pledged.
5.8 The equipment and material subject of the order will remain the property of the Vendor, until the Buyer has fully complied with all payment obligations. The Buyer is obliged to cooperate and take all the necessary or convenient measures, as well as those suggested by the Vendor, to protect the Vendor’s title to said equipment and material.
6. Gas Handling
6.1 The Buyer is obliged to comply with the current regulations when handling gases, especially with the prevention of occupational hazards dispositions, as well as industrial safety, e.g. ITC EP-6, MIE-APQ 5, and general technical rules.
6.2 The Buyer is obliged to comply with the specifications established in the Safety Data Records, which correspond to the gas orders or gas consultations in our web page: www.linde.es.
6.3 In case of doubt on the possible use of new gases, please obtain the corresponding new Safety Data Sheets on our website, or else the request to our Headquarters or nearest Sales area.
7. Delivery times and conditions
7.1 The delivery time is for the material placed in the position and conditions stated in the order acceptance. If the delivery position is not specified in same, the Supply shall be considered placed at the Vendor’s works or stores. For the delivery time to be binding on the Vendor, the Buyer should have complied with the payments schedule, when applicable.
7.2 The delivery time shall be modified when:
a) The Buyer does not deliver the documentation needed for the execution of the Supply on time.
b) The Buyer requires modifications in the order which are accepted by the Vendor and which in the Vendor’s opinion require an extension of the delivery time.
c) For the fulfilment of the Supply it is essential for the jobs to be executed by the Buyer or his subcontractors and these were not done in time.
d) The Buyer has not fulfilled any of the contractual obligations of the order, especially one referring to payments.
e) Delays occur in the production or provision of all or some of the items of the Supply for a reason not directly attributable to the Vendor. For merely informative but not restrictive reasons, the following causes of delay are included: supplier, transport and services strikes, failures in the supplies of third parties, transport system failures, floods, storms, disturbances, strikes, walk-outs by the Vendor’s or his subcontractors’ personnel, sabotage, accidental shut-downs at the Vendor’s works due to breakdowns, etc. and any cause that may be considered as an act of God (Force Majeure) in the legislation in effect, as established in Clause 12.
f) The Buyer has unilaterally suspended execution of the order.
In the foregoing cases, delays in the delivery time shall not modify the Supply payment schedule.
7.3 In the event of a delay taking place in the delivery of the equipment and materials covered by the order directly attributable to the Vendor, the Buyer shall apply the penalty agreed previously with the Vendor, said penalty being the sole compensatory action possible on account of delay.
7.4 Should the Buyer intend on his own account or order his transport company the collection of the containers, he will be responsible for the safe loading and unloading, and for the compliance with the existing regulations regarding the transportation of Hazardous Materials.
8. Inspection and Acceptance
8.1 Unless the contrary is expressly stated in the Vendor’s offer or the Vendor’s order accepted by the Seller, inspections and tests during production and the final inspection prior to shipment of the Supply shall be carried out by the Vendor. Any additional test required by the Buyer should be specified in the order, listing the standards applicable and, if appropriate, the place and entity where these tests will be performed. These additional tests should have the Vendor’s approval and they shall be carried out for the Buyer’s account.
8.2 When the Supply has been received, the Buyer shall verify its contents within a period of no more than 15 days from its receipt, so as to check for possible defects and/or faults that might be attributable to the Vendor, in which case informing the Vendor immediately of the existence of these defects and/or faults.
8.3 If the Supply presents defects and/or faults attributable to the Vendor, the latter shall take the necessary steps to remedy them.
8.4 Unless acceptance tests in conditions and at dates agreed between the Vendor and the Buyer have been specified in the order, in the form indicated in point 8.1, once 15 days have passed from the receipt of the Supply by the Buyer without the Vendor having received written notification of possible defects or faults, the Supply shall be considered to have been accepted, at which point the guarantee period shall start to be counted.
8.5 The Supply shall be considered for all purposes to have been accepted by the Buyer if, although acceptance tests have been agreed, these are not carried out in the period stipulated for reasons not attributable to the Vendor or if the Buyer starts to use the Supply.
9.1 Under no circumstance will the Vendor accept the return of materials without prior agreement on the matter with the Buyer. A period of 8 days from the time when Supply has been received by the Buyer is set for the latter to inform the Vendor of his intention to return materials and the justification for this and to arrange the return procedure with the Vendor, when applicable. In any case, claims should be submitted by the Buyer to the Vendor in a reliable fashion and in writing.
9.2 Returns or shipments of material to the Vendor’s premises, whether for their payment, replacement or repair, should always be made postage or carriage paid.
9.3 In the event of a return due to a mistake in the order or for other reasons not attributable to the Vendor, 15% of the net value of returned material shall be charged as the Buyer’s share in the review and conditioning costs.
9.4 The Vendor will not accept the return of materials that have been removed from their original packing, used, fitted in other equipment or installations, or which were subject to disassembly operations not done by the Vendor.
9.5 Neither will the Vendor accept the return of products designed or made specifically for the order.
10.1 Unless expressly stipulated otherwise in the offer or acceptance of the order, the Vendor guarantees the products that he has supplied in respect of defects of materials, manufacture or assembly for a period of one year from the date of acceptance, whether this be explicit (successful completion of acceptance tests arranged between the Vendor and Buyer and remittance of a letter of acceptance of the Supply), or tacit (15 days after shipment by the Buyer without written communication to the Vendor specifying some non-conformity)
10.2 The guarantee stated in point 10.1 consists of the repair or replacement (at the Vendor’s discretion) of the items that have been acknowledged as faulty, either because of defects in the material or due to manufacturing or assembly defects. Repairs are taken as being carried out at the Vendor’s shops, while the Buyer is liable for disassembly operations, packings, loading, transport, customs, duties, etc., stemming from the remittance of the faulty material to the Vendor’s shops and its subsequent delivery to the Buyer. Arrangements may be made with the Buyer, however, for repairs and replacement of faulty items to be carried out on the Buyer’s premises.
10.3 The repair or replacement of a faulty Supply item does not affect the starting date of the Supply guarantee period as a whole, which shall be as specified in point 10.1. The item repaired or replaced, however, shall have one year’s guarantee as of its repair or replacement.
10.4 When the guarantee stated in point 10.2 consists of a replacement that has to be done immediately for emergency reasons, the Buyer undertakes to make the return of the faulty part or item in a period of not more than 7 days from the date of delivery of the new part or item. The part sent shall be invoiced if the replaced one is not returned.
10.5 Under no circumstance will the Vendor accept liability for repairs carried out by personnel not belonging to his organization.
10.6 Damage or defects due to normal wear resulting from use of the equipment are excluded from the guarantee. Also excluded from the guarantee, which shall moreover be considered as expired, are the damage and defects caused by improper upkeep or maintenance, storage, or incorrect or negligent handling, misuse, use of unsuitable liquids and gases as well as incorrect flow or pressure, fault installations, variations in the quality of the power Supply (voltage, frequency, disturbance) modifications made in the Supply without the Vendor’s approval, installations carried out or modified later without following the product’s technical instructions and, in general, any cause that is not attributable to the Vendor.
10.7 The guarantee shall also be considered expired if, in the event of it being stipulated that the Supply should be started up with the Vendor’s attendance, the Supply is started up without such attendance or if, in case of failure, no measures are taken to mitigate the damage.
10.8 Notwithstanding the provisions of the previous points in this clause, the Vendor in no event shall be liable for defects in the equipment items and materials that are the subject of the Supply for a period of more than two years as of the start of the period specified in point 10.1.
11.1 Except as expressly provided in this paragraph, the Vendor shall have no other liability, whether by contract, tort, misrepresentation or otherwise, on any other loss or damage, including loss of revenue or profit, profits, savings , use, contracts, goodwill or loss of business and any other associated or indirect loss or damage.
However, nothing is considered limiting or precluding the Vendor's liability for fraud or fraudulent misrepresentation.
11.2 The Vendor accepts unlimited liability for death or personal injury arising from the Vendor's own negligence.
11.3 The Vendor accepts the liability for physical damage to property to the extent that it results from breach of contract or seller's negligence in connection with the performance of the contract. This responsibility is subject to an annual limit of 100,000 Euros for each event or series of similar or related cases and also may never exceed 20% of annual income provided by the Seller under the Contract signed by Buyer, for each incident occurred. Any other loss resulting from other physical damage to property shall be limited pursuant to paragraph 11.4.
11.4 The Vendor accepts the responsibility, if it results from a breach of contract or negligence of the Seller in connection with the fulfillment, loss, costs, expenses or damages, in addition to the Seller's liability under paragraph 11.3, and regardless of that liability:
a) caused by the supply of any defective gas up to a limit of € 2,500 per incident and never more than 20% of monthly income provided by the seller under a contract signed with the buyer, for each incident occurred;
b) the derivative of the delay or failure by Seller to deliver any gas to a limit with an amount equal to the price of gas which Seller has not delivered and never more than 20% of monthly income provided by Seller under signed a Contract with the Purchaser, for each incident occurred;
c) As a result of technical advice by the Seller, in exchange for a specific amount, up to the amount received for such advice.
12. Force Majeure
12.1 In the case that the Vendor is impeded, either totally or partially, from complying with his contractual obligations due to Force
Majeure, compliance with the affected obligations will be suspended, with no responsibility to the Seller, for as long as is reasonably necessary in accordance with the circumstances.
12.2 Force Majeure will be understood as any cause or circumstance outside of the reasonable control of the Seller, including but not limited to, strikes by suppliers, transportation and services, failure in third party deliveries, failure in transportation systems, natural catastrophes, floods, storms, uprisings, strikes, labour conflicts, work stoppages by the Vendor’s personnel or it’s subcontractors’ personnel, sabotage, acts, omissions or intervention by the government or any of its agencies, accidental stoppages in the Seller’s factory due to breakdowns, etc. and all the force majeure causes contemplated in the current legislation which affect the Vendor’s activities either directly or indirectly.
12.3 When there is a cause of Force Majeure, the Vendor will notify the Buyer as soon as possible, explaining the cause of Force Majeure and the estimated duration. The Vendor will notify the buyer on the termination of the cause of Force Majeure specifying the period of time necessary to comply with the obligations suspended due to said Force Majeure. The occurrence of a cause of Force Majeure will give the Vendor the right to a reasonable extension in the date of delivery.
12.4 Should the cause of Force Majeure last for a period longer than three (3) months, the Parties shall negotiate to reach a fair and adequate solution to the circumstances, taking into account the Vendor’s difficulties. If no reasonable agreement is reached within thirty (30) days, the Vendor may cancel the order, with no responsibility on his part, by written notice to the Buyer.
13.1 The Buyer and the Vendor shall treat as confidential all documents, data, materials and information disclosed, shall not share it with third parties, and will refrain from using it directly or indirectly other than for the development of the Project (Supply/Service), unless said disclosure or use is authorized by previous written consent of the other Party.
13.2 Notwithstanding the above, the Vendor is authorized to provide the Buyer's name and basic details of the Project (Supply / Service) as part of their business references.
The present conditions will be subject to and interpreted in accordance with Spanish Law.
The parties expressly waive any other code of laws that might pertain to them and agree to submit to the jurisdiction and authority of the Courts and Tribunals of the city of Barcelona.
15. Data Protection
Abelló Linde would like to inform you that the personal data provided are included within the "Clients" of our property, file registered with the Spanish Data Protection Authority (AEPD) with the sole objective of administering the data of potential clients and web users in order to inform about our products and services. They will be treated as strictly confidentiality according to the Company´s Privacy and Security Policy, in addition to the Organic Law 15/1999, from the 13th of October, on Personal data Protection, and the Royal Decree 1720/2007 from the 21st of December.
The aim of the treatment is to manage and administrate our clients in order to provide our services to them, as well as to inform them on the products and services offered by the Company.
We would like to inform you that you have the right to exercise your rights to oppose, access, rectify or cancel. In order to exercise these rights and for any clarification, you can contact us by post to the attention of the Data Protection Committee, Abelló Linde S.A C/Bailén, 105, 08009, Barcelona or by email at: email@example.com.