1.1 In the following provisions ‘Customer’ shall mean the person to whom Accessories Unlimited, SL. makes an offer for delivery of goods and/or services as well as the person with whom Accessories Unlimited, SL. makes an agreement for delivery of goods and/or services.
1.2 ‘Agreement’ shall mean every agreement established between Accessories Unlimited, SL. and the customer, each modification thereof or supplement thereto, as well as all (legal) activities in preparation and execution of an agreement.
2.1 The execution of this agreement does not grant the customer the exclusive right to distribute Accessories Unlimited products. Consequently, Accessories Unlimited may have commercial dealings that are analogous to those established in this contractual relationship, with other companies in the industry and the territory of the customer, or directly with end customers, without this entitling the customer to object to such circumstance or to claim indemnification of any manner in this regard.
3.1 These Terms shall apply to all deliveries of goods and/or services by Accessories Unlimited, SL. to the customer, as well as to all agreements pertaining thereto and all activities relating thereto, both of a preparatory nature, like offers, confirmations of order and deliveries.
3.2 The application of any standard or specific terms or conditions of the customer is explicitly rejected by Accessories Unlimited, SL.
3.3 Divergent terms shall exclusively apply if and in so far as this has been confirmed and approved in writing by Accessories Unlimited, SL. and shall only apply to the relevant agreements. If any provision of these Standard Terms is not valid for whatever reason, the parties shall negotiate on the contents of a new provision that shall approximate the contents of the original provision as closely as possible.
3.4 Accessories Unlimited, SL. reserves the right to modify these Standard Terms at any time. The modified Terms shall apply from the moment Accessories Unlimited, SL. has informed the customer of the modification in writing, provided always that with regard to the existing agreements with the customer the Terms that were in force on the day the agreements were made, shall remain applicable.
4.1 In the event that any of the provisions of these Terms and Conditions of Sale is adjudged to be null and void, the validity of the terms and conditions as a whole shall not be affected by such circumstance, and the other terms and conditions shall remain in effect and not be affected by the judgment rendering the provision in question null and void.
4.2 The term or condition rendered null and void by law shall be replaced by a new provision, or be interpreted in a statutorily acceptable manner that approximates, insofar as possible, the condition that Accessories Unlimited would have formalized had it been aware that the condition in question was not effective.
5.1 Accessories Unlimited and the customer are not bound by an ordinary or special employment relationship and their relationship is limited to that established in this sale and purchase agreement.
5.2 The customer shall not be entitled to be reimbursed for the expenses incurred in the pursuit of its professional activities as a result of performing the established contractual relationship.
6.1 All offers or (price) quotations made or given by or on behalf of Accessories Unlimited, SL. are without engagement and shall only be regarded as an invitation for placing an order.
6.2 An agreement shall only come into effect if and in so far as Accessories Unlimited, SL. has knowledge of the customer’s order and given its acceptance, and shall be perfected as from the date on which order confirmation is issued and sent to the customer.
6.3 If an order confirmation from Accessories Unlimited, SL. differs from an order given by the customer, the agreement shall be concluded in accordance with the order confirmation, unless the customer rejects the order confirmation in writing within 24 hours of receipt. After such time period, Accessories Unlimited’s order confirmation shall be deemed to be accepted by the customer.
6.4 All statements by Accessories Unlimited, SL. of prices, numbers, measures, weights and / or other specifications of products are made carefully, but are not binding upon Accessories Unlimited, SL. Accessories Unlimited, SL. cannot guarantee that no deviations will occur in this respect.
6.5 For work/deliveries for which in connection with their nature and/or volume no order confirmation is sent, the invoice shall also be regarded as an order confirmation, which shall be considered to represent the agreement fully and accurately.
7.1 Modifications of and supplements to any provisions of the agreement and/or the terms shall only apply if they have been recorded in writing by Accessories Unlimited, SL. and shall only relate to the relevant agreement.
7.2 Accessories Unlimited, SL. shall have the right – in case Accessories Unlimited, SL. thinks it necessary or desirable – for the proper execution of the agreement, to involve third parties, the cost of which will be charged to the customer, in accordance with the price quotation given by Accessories Unlimited, SL
8.1 Unless agreed otherwise, delivery will be made ex warehouse. The time of delivery shall be the moment when the goods ordered leave Accessories Unlimited, SL.’s warehouse.
8.2 From the moment of delivery, including the point of time stated in 8.1 above, the goods delivered shall be for the customer’s account and risk.
8.3 Times of delivery given shall never be regarded as deadlines. In case of any declaration in default made by the customer referred to a late delivery it must be ratified or confirmed by Accessories Unlimited. In case of confirmation by Accessories Unlimited of such default, a reasonable period of time for delivery must be allowed.
8.4 In case the period of delivery is exceeded, the customer shall not be entitled to any indemnity. Nor shall the customer in such case have the right to dissolve or to give notice of termination of the agreement, unless the exceeded time of delivery is such that the customer cannot reasonably be required to maintain the relevant part of the agreement. The other party will in such case have the right to dissolve the agreement to the extent that this is strictly necessary and only for such part for which the period of delivery has been exceeded.
8.5 Accessories Unlimited, SL. shall always have the right to make partial deliveries.
8.6 Unless expressly agreed otherwise, Accessories Unlimited, SL. will deliver the products (or have them delivered) to the address given by the customer.
8.7 On delivery at the customer’s address the cost of transporting the products or moving the products within business premises or industrial sites are not included in the price. Such costs will be charged to the customer.
8.8 The customer undertakes to accept the products in a diligent manner and in accordance with the provisions of the contractual relationship. If the customer were to refuse or delay acceptance of the items purchased, Accesories Unlimited may:
8.9 In case the customer does not or timely pay or receive the products he will be in default without further notice of default. In such case Accessories Unlimited, SL. shall have the right to store the products for the customer’s account and risk or to sell them to a third party. The customer shall remain indebted for the purchase amount increased by interest and costs, including storage costs, on account of indemnity, when appropriate reduced by the net proceeds of the sale to such third party.
8.10 Accessories Unlimited, SL. shall have the right to postpone new deliveries until the customer has met all his outstanding payment obligations towards Accessories Unlimited, SL.
9.1 The goods shall be transported on a basis prepaid and the cost thereof shall be charged to the customer in the invoice. Accordingly, Accessories Unlimited shall engage the transport services required to deliver the products and expressly states that it shall not be liable for the outcome of the transport or for any damage that it may cause to the products or third parties.
9.2 Accessories Unlimited shall include in the customer’s invoice the costs quoted by the transport company for the delivery of the products.
9.3 Similarly, the customer’s transport-related obligations are as follows:
10.1 The customer shall inspect the delivered goods as thoroughly as possible immediately on arrival. Any complaints about malfunctions or defects shall be reported to Accessories Unlimited, SL. in writing not later than within eight working days after delivery. Malfunctions or defects that could not reasonably be discovered within the said period of time shall be reported to Accessories Unlimited, SL. immediately after their discovery and not later than six months after delivery of the goods.
10.2 If and in so far as Accessories Unlimited, SL. considers the complaint justified, Accessories Unlimited, SL. shall exclusively be obliged in its discretion to repair the defect(s) or to replace the defective goods, without the customer being able in addition to assert any right to any compensation whatsoever.
10.3 After the discovery of any defect Accessories Unlimited, SL. may require the customer to discontinue the sale or delivery of the relevant goods instantly. The customer shall not have the right to complain with regard to products of which Accessories Unlimited, SL. cannot verify the complaint.
10.4 The customer cannot assert any claims against Accessories Unlimited, SL. for complaints about manufacturing defects of products as long as the customer has not met any obligation towards Accessories Unlimited, SL. directly opposite it. The customer shall render every assistance Accessories Unlimited, SL. may require for investigating the complaint.
10.5 The customer shall not be at liberty to return the products, before Accessories Unlimited, SL. has consented thereto in writing. Transport shall always be made for the customer’s account and risk. Solely in case a complaint has been made timely, correctly and rightfully will the reasonable costs of returning be borne by Accessories Unlimited, SL., provided such costs were approved by Accessories Unlimited, SL. beforehand.
10.6 Accessories Unlimited shall not be held liable in any way or under any circumstance in the event of any claims that could arise from the unwise or inappropriate use of the products supplied, or from altering or manipulating the products without its express written consent. In the sale of the products acquired from Accessories Unlimited and for the purpose of holding it harmless from claims, the customer shall responsible for informing its customers of this circumstance and of the products’ intended use and limitations and, if applicable, the fact that they are not authorized for traffic and are, consequently, merely decorative.
11.1 Accessories Unlimited, SL. may charge inter alia changes in prices, if between the moment the offer is made and the total payment is made significant changes in prices have occurred in respect of, for instance, rates of exchange, wages, raw materials, semi-manufactures, packing material.
11.2 The prices Accessories Unlimited, SL. applies are exclusive of VAT and any other levies, as well as any expenses made for the purpose of the agreement, including forwarding and accounting charges, unless indicated otherwise. All of these expenses shall be for the account of the customer.
11.3 The prices quoted by Accessories Unlimited, SL. are in Euros or in US Dollars ex warehouse, unless explicitly stated otherwise or agreed otherwise under Accessories Unlimited consent.
12.1 Payment of the products shall be made in advance. Accordingly, until the relevant amounts have been received, Accessories Unlimited shall not be obligated to supply the products to the customer. If, due to the nature of the transaction or to circumstances specific to the customer, payment cannot be settled in the above-mentioned manner and has to be deferred, subject to Accessories Unlimited’s express written consent, the customer must furnish an on-demand guarantee jointly and severally with a credit or financial institution of internationally acknowledged standing.
12.2 The customer must pay the price of the products within 24 hours of order acceptance unless Accessories Unlimited indicates otherwise.
12.3 The customer shall not have the right to set off the amount owing to Accessories Unlimited, SL. against the amount he believes Accessories Unlimited, SL. owes him. Furthermore, the customer shall not have the right to suspend any payment obligation towards Accessories Unlimited, SL.
12.4 From the moment the customer is in default up to the date of full payment he shall owe a default interest of 1% per month, or part thereof and any penalty established between the parties, without prejudice to Accessories Unlimited, SL. ‘s right to full indemnity on the basis of the law. All costs of collecting the amounts owing by the customer, both judicial and extra-judicial, shall be for the customer’s account.
12.5 On or after concluding the agreement the customer shall, at Accessories Unlimited, SL.’s first request thereto, be obliged each time to provide adequate security in connection with his payment obligations and other obligations ensuing from the agreement. Pending such provision of security, Accessories Unlimited, SL. shall have the right to suspend its obligations.
12.6 Accessories Unlimited, SL. will always consider payments made by the customer to apply to payment of interest and/or costs due and subsequently to payment of to the most aged unpaid invoices. Even though the customer may state that the payment relates to a later invoice.
13.1 Without prejudicing the other provisions of this agreement, the ownership of the goods delivered by Accessories Unlimited, SL. to the customer shall be retained up to the moment of full payment by the customer of all that he owes to Accessories Unlimited, SL. on account of all deliveries made under written agreement(s) concluded between Accessories Unlimited, SL. and the customer including all combined (balance) obligations and all debts to Accessories Unlimited, SL. because of the customer’s failure with regard to such agreements (including interest, costs and penalty).
13.2 The customer shall not be allowed to pledge the goods delivered by Accessories Unlimited, SL. or otherwise encumber them with a restricted right, as long as they are under retention of title.
13.3 If and as long as Accessories Unlimited, SL. is owner of the products, the customer shall inform Accessories Unlimited, SL. immediately if the products are (or threaten to be) attached or if third parties otherwise lay claim on the products or part thereof. Furthermore, the customer shall immediately inform the bailiff levying attachment and third parties of Accessories Unlimited, SL.’s (proprietary) rights. In addition, the customer shall inform Accessories Unlimited, SL. at its first request where the products are. The customer guarantees that an attachment of the products is immediately lifted.
13.4 In the case of a (provisional) moratorium on payments or bankruptcy the customer shall inform Accessories Unlimited, SL. immediately thereof and indicate to the administrator or the receiver Accessories Unlimited, SL.’s (proprietary) rights.
13.5 The customer undertakes to insure the goods delivered under retention of title and to keep them insured against fire, explosion and water damage as well as against theft or any other circumstance that could damage or alter the nature of the goods and to have the policy of such insurance inspected on demand. As regards such insurance, the customer commits to provide Accessories Unlimited with a copy of the insurance policy and the documentation substantiating payment of the premiums.
13.6 Rights shall be granted, or where appropriate transferred to the customer on the condition that the customer shall always make the agreed payments in time and in full.
14.1 Accessories Unlimited may terminate the contractual relationship early at any time, with immediate effect and without prejudice to any right it might have to claim indemnity for loss and damage, through a notice of termination which will be effective as from the date it is served:
14.2 In order to terminate any contractual relationship ultimately established, Accessories Unlimited must notify the customer by any means providing acknowledgement of receipt, and termination will take effect automatically. In such event, notwithstanding the foregoing, further to termination of the contractual relationship, Accessories Unlimited shall reserve the right to demand full and immediate payment of all amounts owed by the customer to Accessories Unlimited, and to enforce the guarantees provided to secure the payments required of the customer by Accessories Unlimited.
14.3 The customer waives any right to compensation or indemnity that it might have upon termination of the contractual relationship.
14.4 Accessories Unlimited, SL. shall have the right to take back products delivered. In this connection Accessories Unlimited, SL. and its attorneys shall have the right to enter the customer’s premises and buildings in order to take possession of the products. The customer shall be obliged to take the necessary measures in order to enable Accessories Unlimited, SL. to exercise its rights.
15.1 If the contractual relationship is terminated due to any reason:
16.1 Subject to the other provisions of this Clause, Accessories Unlimited, SL.’s liability shall be explicitly limited to the provisions of Clause 10.2 with regard to complaints, so that in connection with the goods delivered Accessories Unlimited, SL. shall never be liable for any (further) damage, including consequential loss, and Accessories Unlimited, SL. shall not be obliged to pay loss due to business interruption, loss of profits, damage due to personal accidents, damage resulting from third party claims against the customer or any other damage whatsoever.
16.2 Pursuant to Law 22/1994 on Civil Liability for Damage caused by Defective Products, Accessories Unlimited shall be wholly released from all liability and, in all cases, in the event of damage caused by defective products, such liability shall fall to the manufacturer.
16.3 Subject to the provisions of Clause 16.1 above, liability towards the customer for whatever cause or reason shall be limited to the invoice value of the products delivered by Accessories Unlimited, SL. to the customer, on the basis whereof the claim has arisen. An interrelated series of events shall thereby be regarded as one event.
16.4 For damage of whatever nature arising from or caused by the use of the delivered product or by unsuitability thereof for the purpose for which the customer has used it, Accessories Unlimited, SL. shall not be liable. Accessories Unlimited do not guarantee the items nor their merchantability and fitness of purpose. . Manufacturers supply their own warranties and guarantees and most of them do not permit a wholesaler or distributor to make any adjustment, replace any part or accept for return or exchange any defective or unsatisfactory item. Please follow the guarantee instructions when provided by the manufacturer. Any damages arising from the design or manufacturing of any item are the sole responsibility of the manufacturer. In any case, the liability that could arise from the damage caused by defective products shall be established by Law 22/1994 on Civil Liability for Damage caused by Defective Products.
16.5 Accessories Unlimited, SL. shall not be liable for damage of whatever nature caused by acts or omissions by personnel employed by Accessories Unlimited, SL. or by other persons whose services Accessories Unlimited, SL. employs, including advice or other instructions by such persons for the application and the use of the product delivered by Accessories Unlimited, SL.
16.6 The customer shall indemnify Accessories Unlimited, SL. against all third party claims for payment of damages in connection with the goods delivered to the customer by Accessories Unlimited, SL.
16.7 Accessories Unlimited, SL. shall not be liable for damage of whatever nature, because Accessories Unlimited, SL. proceeded from incorrect and/or incomplete data provided by the customer.
16.8Accessories Unlimited, SL. declines any sort of responsibility for direct or indirect, physical or material damages due to incorrect use or assembly of the supplied products.
16.9 Accessories Unlimited, S.L. in its unquestionable judgement and if it considers necessary, would deal with the repair or replacement of its faulty articles.
16.10 Accessories Unlimited, SL. reserves the right to modify at any moment the articles showed in its brochures or web site.
17.1 Accessories Unlimited, SL. shall be allowed to transfer to third parties rights ensuing from any agreement with the customer. Conversely, the customer shall only be permitted to do so with Accessories Unlimited, SL.’s prior consent in writing.
18.1 In case Accessories Unlimited, SL. is prevented from (further) executing the agreement due to force majeure of a permanent or temporary nature, Accessories Unlimited, SL. shall have the right, without any obligation to pay damages to the other party, to dissolve the agreement fully or partly by a written communication to that effect without judicial intervention, without prejudice to Accessories Unlimited, SL.’s right to payment by the customer for performance already made by Accessories Unlimited, SL., before there was any question of the force majeure situation, or to suspend the (further) execution of the agreement. In the case of suspension, Accessories Unlimited, SL. shall as yet have the right to declare the agreement fully or partly dissolved.
18.2 Force majeure shall include all circumstances that render Accessories Unlimited, SL. temporarily or permanently unable to meet its obligations, such as government measures, strike, defaulting suppliers of goods required for delivery of Accessories Unlimited, SL. goods and services, and furthermore all similar circumstances whereby Accessories Unlimited, SL. cannot (or no longer) reasonably be required to (further) meet its obligations towards the customer.
19.1 The customer shall not be allowed to remove or alter any indication of brands, trade names, patents or other rights from the goods delivered by Accessories Unlimited, SL., including indications about the confidential nature and confidentiality of the goods delivered or to alter or to copy the products or any part thereof. The customer will be obliged to impose this proviso on his customer by way of third-party clause.
19.2 Accessories Unlimited, SL. assumes no liability for infringements of third party intellectual or industrial property rights caused by the modifications made to the delivered goods without Accessories Unlimited, SL.’s consent.
19.3 The customer agrees to keep all documentation and/or information received directly or indirectly from Accessories Unlimited, since the first contact established between Accessories Unlimited and the customer through to the execution of the sale and purchase and thereafter, strictly confidential.
19.4 Any failure to comply with this condition shall entitle Accessories Unlimited to terminate the contractual relationship on grounds of breach. Accordingly, if the customer fails to observe its confidentiality undertaking further to contractual termination or before the sale and purchase is agreed on, it shall be obligated to pay Accessories Unlimited an amount of €600,000 as an express penalty.
20.1 The customer must comply strictly with the provisions of the Personal Data Protection Law and the Spanish and international legislation applicable in each case, as well as the implementing regulations thereof, insofar as Accessories Unlimited is concerned.
21.1 The customer may also enter into product distribution agreements with third parties provided that Accessories Unlimited is informed of contents of those contracts that could affect it, prior to the execution of the agreements and, in all cases, that approval is given by Accessories Unlimited which could request the customer to make the amendments it deems appropriate to defend its interest.
21.2 Notwithstanding the foregoing, when the customer enters into a contractual relationship pursuant to the terms hereof, it shall hold Accessories Unlimited harmless from any third-party party that could be filed in relation to the agreement with the customer.
22.1 The customer guarantees that, depending on the application, the customer himself, the intermediary and/or the end-user will ensure that:
23.1 The customer’s obligations are as follows:
23.2 The customer is not authorized to sign agreements on behalf of Accessories Unlimited or to represent the latter in any way in dealings with third parties.
24.1 The contractual relationship established by Accessories Unlimited with the customer and these terms and conditions of sale shall be governed by Spanish law, with the express nonapplication of the Vienna Convention on International Sales of Goods.
24.2 In the case of any discrepancy over the interpretation and/or performance of this contractual relationship, the parties waive their own jurisdiction, if any, and agree that any litigation, dispute, issue or claim resulting from the performance or interpretation of this contractual relationship, or directly or indirectly related thereto, shall be resolved finally by an arbitration at law at the Arbitration Tribunal of the Alicante Chamber of Commerce, Industry and Navigation, which shall be instructed to conduct the arbitration pursuant to its rules and bylaws.
24.3 The arbitration shall be conducted by a sole arbitrator who shall be designated by mutual agreement between the parties and must be a lawyer with proven knowledge of the subject-matter of the contractual relationship. Should such mutual agreement not be reached, the arbitrator shall be formally designated pursuant to the rules and bylaws of the Alicante Chamber of Commerce, Industry and Navigation.
24.4 The parties expressly state their commitment to abide by the Arbitration Award handed down.
25.1 Accessories Unlimited’s waiver of its right to demand that the customer complies any of its outstanding obligations shall not, under any circumstances, be construed as a waiver to claim against any future breaches.
These Standard Terms of Sale and Delivery have been filed with the Register of Standard Terms and Conditions of Contract in Alicante (Spain) under entry number 1/2005/1.879,0, dated on 2/8/ 2005.