Terms And Conditions
Updated: January 2013
In this document, "El Palacio Damasceno", refers to the society ¨El Palacio Damasceno S.L¨, 28005 Madrid, Spain. The terms "you" and "your" refer to our clients.
(1) The terms and conditions set out below form part of any contracts concluded with El Palacio Damasceno in respect of supplying you with goods or services (sales contract). These terms and conditions apply only if you are a Spanish or foreign public legal entity or fund or if you are a "business client". For the purposes of these terms and conditions, a "business client" is a client (whether an individual, company or partnership vested with legal capacity) who enters into the relevant contract in the conduct of its business or its self-employed professional activity.
(2) In particular, these terms and conditions govern the sale and delivery of products (goods).
(3) These terms and conditions apply exclusively. Differing or contrary terms do not apply except if expressly agreed upon, even in the case that El Palacio Damasceno performs delivery despite our knowledge of differing or contrary terms.
(4) Any references to legal regulations and statutory laws are made for reasons of clarity and transparency only. Legal regulations and statutory laws generally apply without limitation except if and insofar as these terms and conditions expressly change or exclude them.
3 Offers, Orders
El Palacio Damasceno offers are not binding. By placing an order, you make a binding commetment to purchase goods or services from El Palacio Damasceno. El Palacio Damasceno may accept your offer within one week. Your offer shall be deemed to be accepted by El Palacio Damasceno either upon written acceptance of the order or on dispatch of the product by El Palacio Damasceno.
4 Subject Matter of Contract
(1) All business relations between the parties shall be governed by the contents of the written contract only (Quotation), including these terms and conditions. The written contract, including these terms and conditions, constitutes the complete and final agreement between the parties and supersedes all prior discussions or understandings between them except in the event that the latter were expressly declared to be binding.
(2) In general, any product specifications, technical drawings and images provided by El Palacio Damasceno are intended for informational purposes only. They are only binding if exact compliance with the product specifications is required for the goods to be usable for their intended purpose. El Palacio Damasceno goods are subject to variations recognized by trade practice. El Palacio Damasceno may substitute parts of goods as long as the end product fulfills its intended purpose.
5 Export and Import Licenses
(1) El Palacio Damasceno will do its utmost to obtain any export licenses required by law. However, El Palacio Damasceno does not guarantee that the required export licenses will be granted. The client is responsible for obtaining the required export licenses for El Palacio Damasceno. The client is also responsible for stating with binding effect if the client uses El Palacio Damasceno goods exclusively or if El Palacio Damasceno goods are intended to be passed on to third parties (e.g. to the end user). In the event that our goods are intended to be passed on to the end user, you are obliged to provide us with all documents or information (e.g. company profile) which the authorities demand for the purpose of export licenses. If these documents or information cannot be provided even after a reasonable period of time has been set and finally expired, El Palacio Damasceno is entitled to rescind the contract.
(2) You shall be responsible for obtaining any import licenses that might be required.
6 Prices and Payment
(1) Prices are calculated in EURO. Prices are CIF, FOB, EXW as defined by INCOTERMS 2010, depending on prior agreement with client. Prices are exclusive of the respective statutory VAT and possible expenses. Any customs duties, levies, public fees and charges. If the place of destination is outside Spain, you shall also bear any taxes charged by the country of destination.
(2) If prices are based on the El Palacio Damasceno list prices and the delivery of goods is to be executed on accorded period, prices are subject to change according to the El Palacio Damasceno current price list valid at that point. The new prices will take into account any discounts previously agreed on.
(3) The purchase price is due and payable net within 7 days from the date of invoice. Failure to pay within this time period shall be considered default. From the default date, default interest in the amount of 8 percentage points above the respective base interest rate p. a. shall accrue. El Palacio Damasceno reserves all rights to claim further damages caused by your default.
(4) If, after conclusion of the contract, any incidents which give rise to doubts about your creditworthiness shall occur and which endanger your payments to El Palacio Damasceno, El Palacio Damasceno may choose to defer further shipments or services and demand prepayments or a security deposit prior to resuming El Palacio Damasceno shipments or services. If you do not comply with El Palacio Damasceno's demand for prepayment or for depositing a security within a reasonable period of time which shall be set by El Palacio Damasceno, El Palacio Damasceno shall be entitled to rescind the contract and claim damages for non-performance by you.
(5) Invoices are payable by bank transfer (wire transfer). El Palacio Damasceno will not accept any other methods of payment unless otherwise explicitly agreed in writing by El Palacio Damasceno.
(6) Without prejudice to section 9, paragraph (4) of these terms and conditions, you shall have no right of set-off or retention, except to the extent that the counterclaim has not been disputed by El Palacio Damasceno or been determined by a final and binding decision.
7 Place of Performance, Delivery, Risk of Loss
(1) Unless otherwise agreed, place of performance shall be Madrid, Spain.
(2) Unless otherwise agreed, delivery shall be CIF as defined by INCOTERMS 2010. El Palacio Damasceno may opt to select the mode of transportation, including the carrier, the method of shipping, and the packaging.
(3) The risk of loss or damage to the goods shall pass to you upon delivery at the latest. The goods shall be deemed delivered if you are in delay of acceptance. If delivery is CIF as defined by INCOTERMS 2010, the risk of loss or damage to the goods and the risk of delay in delivery shall pass to you upon delivery to the first carrier. The same applies in case of partial delivery.
(4) If delivery is CIF, as defined by INCOTERMS 2010, El Palacio Damasceno will obtain insurance that covers damages to the products caused by water, fire, breakage, or improper transportation, at El Palacio Damasceno's expense.
8 Lead Time, Delay
(1) The delivery period for the goods and for full performance of the contract (herein together referred to as "time for delivery") shall be expressly agreed on or otherwise determined by El Palacio Damasceno at the time of acceptance of your order. The delivery period shall not begin until El Palacio Damasceno has been granted the required export licenses, and after El Palacio Damasceno has been furnished with all documents required to fulfill your order, such as governmental authorizations or clearances from your country. The same applies as long as you do not pay a deposit if payment of such deposit has been agreed. Delivery shall not be deemed delayed if we dispatch the goods or notify you that the goods are ready for dispatch within the agreed time for delivery.
(2) The time for delivery shall be extended for the period of delay in case of any delay for which El Palacio Damasceno is not responsible according to the following rules.
(3) El Palacio Damasceno's delivery shall be deemed delayed at the time determined by the applicable laws. In all cases, El Palacio Damasceno's delivery shall not be deemed delayed until we have received overdue notice from you. El Palacio Damasceno shall not be responsible for delays, failures or omissions under this contract due to any cause beyond El Palacio Damasceno's control, including labor disputes, war, mobilization, political disturbances, governmental intervention of various kinds, including any delay in issuance or denial of any required licenses, in particular export licenses, riots, fires, earthquakes, floods, storms, lightning, epidemics, power cuts, interference with transport, extensive operational breakdowns, or by deficient or delayed performance on the part of El Palacio Damasceno suppliers, except if such event is due to El Palacio Damasceno's own misconduct.
(4) If El Palacio Damasceno is unable to perform within the agreed time for delivery due to causes for which El Palacio Damasceno is not responsible (unavailability of delivery), El Palacio Damasceno will give you prompt notification and inform you of the anticipated time for delivery. If by the latter time the delivery is still unavailable, El Palacio Damasceno may rescind the contract in whole or in part. In this event, El Palacio Damasceno will reimburse you any payments made to El Palacio Damasceno for the delivery. In particular, the delivery shall be deemed unavailable if (1) El Palacio Damasceno's suppliers fail to perform in time and (2) the contract with El Palacio Damasceno's supplier to deliver its goods provides the same security for delivery in comparison with El Palacio Damasceno's contract with you (at least the same goods and volume). El Palacio Damasceno's statutory rights to rescind the contract shall remain unaffected. In the event that El Palacio Damasceno doesn't fulfill their duty to perform, for example if performance is impossible or unreasonable, the statutory laws on the implementation or liquidation of the contract shall remain unaffected. Your rights to rescind the contract pursuant to section 9 of these terms and conditions shall also remain unaffected.
(5) In case of default in acceptance, any other breach of duty by you, or any other event that causes a delay in delivery for which you are responsible, El Palacio Damasceno is entitled to claim any resulting damage. These include, but are not limited to, additional expenses, in particular expenses for the storage of El Palacio Damasceno goods. In compensation for these damages, El Palacio Damasceno may charge you a fixed rate of 0.5 % of the invoice amount per month, starting one month after El Palacio Damasceno have given you notification that the goods are ready to dispatch. Further damages remain unaffected; but any fixed rate payments shall be discounted. El Palacio Damasceno's statutory rights remain unaffected, including El Palacio Damasceno's right to terminate the contract. You may provide evidence that El Palacio Damasceno did not suffer any damages at all or that the damage suffered by El Palacio Damasceno is significantly smaller than the fixed rate.
(6) Our delivery is conditional upon timely and proper performance of all your contractual duties.
(7) El Palacio Damasceno is entitled to make partial deliveries only if (1) the goods can be used separately, and (2) the partial delivery does not cause you any additional costs or expenses (except if El Palacio Damasceno has agreed to compensate you for these additional costs and expenses).
(1) Warranty for defective goods shall be based primarily on the agreement of the condition of the goods.
(2) Complaints regarding any defects or shortcomings in the goods, including incorrect delivery, shall be made promptly in writing, specifying the nature and extent of the defect or shortcomings in reasonable detail. Complaints shall be considered as prompt if the complaint is sent within seven days after the goods have been delivered or, if a defect occurs at a later time, within seven days after the defect has been detected. If you fail to inspect the goods and notify El Palacio Damasceno of defects or shortcomings in maximum time of 10 days from receiving the goods, all your rights with respect to any claims against EL PALACIO DAMASCENO arising from the defect or shortcomings shall be completely waived.
(3) In the event that there is a defect or shortcomings in El Palacio Damasceno's goods for which El Palacio Damasceno is responsible and you have complained promptly, El Palacio Damasceno shall, choose to either remedy the defect (e.g. by repair or reprocessing) or, after the return of the defective goods to El Palacio Damasceno, to deliver new, conforming goods (replacement). El Palacio Damasceno shall not be held responsible for defects caused by negligence or mistreatment of the goods on your part, excessive wear and tear, or failure to observe El Palacio Damasceno's maintenance, servicing and cleaning instructions.
(4) El Palacio Damasceno may suspend remedying the defect or replacing the goods until you pay the purchase price for these goods. However, you are entitled to retain a reasonable part of the purchase price, which shall be in proportion to the defects of the goods.
(5) If El Palacio Damasceno's goods are in fact defective, El Palacio Damasceno shall pay any costs required to remedy the defect or replace the goods, including any transportation costs for return and reshipment, labour and materials. You shall reimburse El Palacio Damasceno, however, for all costs incurred by trying to remedy the alleged defect or replacing the goods if your complaint was unfounded.
(6) El Palacio Damasceno is entitled to deliver the goods or to remedy the defect by replacing a subcomponent of El Palacio Damasceno goods - which El Palacio Damasceno's supplier does not deliver or not deliver on time - with a suitable subcomponent from another supplier or manufacturer, which is considered equal to or better in terms of quality.
(7) If remedying the defect or replacement has failed or not been made in time, you are entitled to reduce the purchase price or to rescind the contract at your option. You may not rescind the contract, however, if the defect is insignificant.
(8) Any claims for damages and reimbursement of expenses shall be excluded except as regulated by section 10 of these terms and conditions.
(1) You guarantee that - in the event that you pass on the goods to third parties -, you comply with all applicable laws, with laws concerning export control and in particular with all current embargoes.
(2) If you do not comply with such applicable laws, El Palacio Damasceno is entitled to claim damages, rescind the contract and to terminate other existing contracts with immediate effect.
11 Applicable Law, Jurisdiction
(1) The laws of the Kingdom of Spain shall exclusively apply to these terms and conditions and to any transactions concluded by you and El Palacio Damasceno. International purchase laws do not apply
(2) The courts in Madrid, Spain, shall have exclusive jurisdiction concerning all disputes arising out of or in connection with the relevant contract. However, El Palacio Damasceno may also choose the courts that are authorized near your domicile.
(1) El Palacio Damasceno may save and process any data relating to you, to the extent necessary for the purpose of the execution and implementation of the contract and as long as El Palacio Damasceno is required to keep such data in accordance with applicable laws.
(2) El Palacio Damasceno shall have the right to submit personal data relating to you to credit agencies, to the extent necessary for a credit check, subject, however, to your consent in each individual case. El Palacio Damasceno shall not make available any of your personal data to other third parties without your express consent, except to the extent that El Palacio Damasceno is required to disclose any data pursuant to applicable laws.
(3) El Palacio Damasceno shall not be permitted to collect, submit to any third party or otherwise process your personal data for any purpose other than those set forth in this section.