Condiciones de uso y contratación
These terms and conditions of contract (hereinafter the ‘TCC’) are provided by SMARTLIFT, S.L. as owner of the website and vendor (hereinafter “Supplier”), registered address calle Solsonès no. 87, P.I. Pla de la Bruguera, 08211 Castellar del Vallès, Barcelona, Spain, registered in the Barcelona Company Register in Volume 38754, Folio 37, Sheet B-334198, Tax Code (CIF) B-624.256928, tel. ________, fax ___, e-mail ___________, and regulate deliveries in commercial transactions with businesspeople (hereinafter “Customer” or “Buyer”) under the terms of Section 4 of Legislative Royal Decree 1/2007, of 16 November, enacting the Consumer and User Protection Act (hereinafter CUPA) and EXCLUDING CONSUMERS AND USERS (B2B).
1 Terms and conditions of delivery
1.1. SMARTLIFT may at any time and without notice amend these terms and conditions and the terms and conditions of contract set out below (section 2) and/or any special terms and conditions which are included by posting such amendments on the website so users can read them before visiting the website or purchasing any of the goods for sale on the website.
1.2. The legal relationship between Supplier and Customer in connection with Supplier’s deliveries and/or services is governed solely by these TCC which Customer fully and expressly accepts without reservation. Except with the express written consent of Supplier, none of Customer’s terms and conditions of contract that conflict with, contradict or diverge from these TCC shall apply, and even if Supplier makes deliveries when aware of such terms and conditions of Customer this shall in no case constitute tacit acceptance of them.
1.3. These terms and conditions shall also apply to all subsequent orders including orders for spare parts and additional components and no further explicit reference to them shall be required.
1.4. Subsidiary clauses, statements, amendments and additions to these TCC and/or other agreements between the parties including when arranged remotely and in amendment of this point shall be made in writing.
1.5. Should any section of these terms and conditions be invalid or void, this shall not affect the validity of the other sections of this contract. The parties undertake to replace such invalid section by a valid provision which in financial terms is as close as legally possible to the previous provision and failing that by the law.
2 Order and order confirmation
2.1 Offers from Supplier are subject to change and shall only be binding if containing a period for acceptance. The contract is considered concluded when Customer receives Suppliers’ written confirmation of the Order.
2.2 Orders shall be placed through Supplier’s online catalogue whereby Supplier provides Customer with a website for placing their orders which is solely for businesspeople under the terms of Section 4 of the CUPA (B2B website). To confirm they are a businessperson Customer must register, and once their registration is confirmed by Supplier they will receive a customer number to place their orders. Presentation and advertisement of articles in the online shop does not under any circumstances constitute a binding offer of sale by Supplier for certain articles and products. The parties shall agree prices and delivery terms for each order. Once registration has been processed and by placing their order by clicking “submit order” or a similar button, Customer sends their order or purchase offer to Supplier and Supplier will immediately confirm it has been received by email. This email does not represent a binding acceptance of the order unless Supplier expressly states otherwise. Once the availability of the product has been confirmed, the contract is only concluded when the order is accepted by Supplier.
3 Scope of delivery and services
3.1 SMARTLIFT reserves the right to cease providing access to any of the products offered on the website at any time and without notice.
3.2 Supplier’s written order confirmation is binding for delivery in case of purchases from the online catalogue in accordance with Section 2.2. Any and all oral agreements, side agreements or modifications with Supplier’s employees shall require written confirmation from Supplier to be considered effective. Supplier’s right to technically modify the article of sale is reserved as long as such modifications do not affect its technical functionality.
3.3 Supplier’s descriptions of technical features and configurations in its general catalogue or online catalogue are authoritative according to the current version on the order date for ordered and delivered goods. In all other respects, specifications in brochures, online catalogue, catalogues or general technical documents shall be binding only if Supplier has made reference to them in writing. Unless otherwise stated, any dimensions or similar specifications referred to by Supplier (for example images and drawings, also in the online catalogue) are not intended to be one hundred percent accurate within the limits of commercially accepted tolerances and the technical possibilities of remote reproduction.
3.4 If software is part of the scope of services, Customer obtains a non-exclusive right to use the software on the basis of its manual. Such right is granted solely for use on the agreed hardware. Using the software on more than one system is only allowed with Supplier’s written consent. Likewise, the software delivered may not be modified without Supplier’s written consent. The instructions in “Terms and conditions of use of the website and downloads” on Supplier’s website shall also apply to any software, documentation and other information about the product provided to Customer free of charge on such website.
4 Prices and terms of payment
4.1 Unless otherwise agreed prices are stated in euro (€). They are ex works (EXW Incoterms 2010), excluding costs such as packing, carriage, insurance, customs tax and unloading. The amount for shipping costs, consisting of packing and freight charges, shall be indicated separately for each order made by Customer and confirmed in the order acceptance.
4.2 Value Added Tax (VAT) is not included in the prices. It will be charged at the rate legally prescribed on the date of delivery which shall be indicated separately for each order made by Customer and confirmed in the order acceptance and invoice.
4.3 In order to purchase the products offered in the online store SMARTLIFT requires Customers to register as users, who must be over eighteen (18) years of age, by following the onscreen instructions:
- Fill in the electronic form on the website following the instructions.
- Press the “OK” button.
- Reception in the User’s email account of the “Username” and “Password”
The username and password are personal and non-transferable. SMARTLIFT may with appropriate notice amend the user’s username and/or password, in which case the amended codes will no longer be valid.
Specifically, and without this entailing any restriction on the obligation accepted by the User/Customer in general in the preceding paragraph, when using the website and purchasing Supplier’s products the User/Customer undertakes as follows:
- Provide true information and keep it updated.
- Not enter, store or distribute in or from the website any information or material that is defamatory, libellous, obscene, threatening, xenophobic, incites violence or discrimination based on race, sex, ideology, religion or in any other way is prejudicial to public order, fundamental rights, public freedoms, reputation, privacy or the image of others and prevailing regulations in general.
- Not enter, store or distribute through the website any computer program, data, virus, code, hardware or telecommunications equipment or any other electronic or physical instrument or device that may damage the website, any of the services or any of the equipment, systems or networks of SMARTLIFT, any User, or in general any third party, or which may otherwise cause any type of alteration or impede their normal operation.
- Safeguard their username and password as identifiers and keys for purchasing products and not transfer their use or allow third parties to access them, accepting liability for any damages arising from their improper use. Likewise, the User undertakes to report any loss, theft or risk of access to their username and/or password by a third party to SMARTLIFT as soon as possible.
- Not use false identities or impersonate others when using the website or using or purchasing any of the products, including the use of passwords or access codes of third parties or in any other way.
- Not destroy, alter, disable or damage data, information, programs or electronic documents of SMARTLIFT or third parties.
- Not enter, store or distribute through the website any content that infringes the intellectual or industrial property rights or business secrets of third parties, or in general any content that under the law they are not entitled to make available to third parties.
4.4 Once registered and in order to purchase Products, the User should add the product they want to buy to their shopping basket by following the onscreen instructions, fill in the order form which includes the cost of packaging, freight, taxes and any other applicable expenses, and send it to SMARTLIFT, which means reading and accepting all these terms and conditions of contract and any special terms and conditions.
The purchase shall be deemed made at the registered address of SMARTLIFT at Calle Solsonés no. 87, P.I. Pla de la Bruguera, 08211 Castellar del Vallès (Barcelona).
4.5 As soon as possible following purchase and payment and when so requested, SMARTLIFT’s Customer Care Department will send the invoice to the User at the address shown on the form or email it to the address stated by the User when they registered. The order confirmation sent by SMARTLIFT shall not be valid as an invoice and is merely proof of purchase.
5 Method of payment and delivery
5.1 The price of goods purchased and their shipping costs shown onscreen when ordering are to be paid in advance by credit card, bank transfer or PayPal.
When paying by credit card the User should follow the onscreen instructions and provide the following information:
- Card number.
- Expiry date.
- The card’s CVV2 or CVC2 code
SMARTLIFT uses the ______ ecommerce payment gateway as its electronic payment system. All data provided for this purpose are encrypted under the SSL (Secure Socket Layers) protocol to ensure their utmost security.
SMARTLIFT reserves the right to ask any shop User who has made a purchase to demonstrate payment for it and/or to identify themselves by sending a document by remote means (fax, email or similar) that identifies them as the buyer and which may include the delivery address (Spanish ID, Passport, Resident Card, Certificate of Registration on the Municipal Population Census, etc.).
5.2 Delivery time is thirty (30) calendar days and shall be considered met if the article sold has been dispatched or collected within the deadline ready for use. If delivery is delayed for reasons attributable to Customer, notice of readiness for dispatch shall be considered sufficient for this purpose.
5.3 If Customer is in default in receiving the article of sale, Supplier may claim as a contractual penalty compensation of 0.5% of the purchase price for each week of default without such penalty replacing any compensation for damage, and Supplier may require payment of the penalty together with fulfilment of the obligation. Supplier is also entitled to withdraw from the contract or otherwise dispose of the article of sale and any further claims for damages by Supplier due to Customer default in acceptance remain unaffected.
5.5 If Supplier is in default in supplying the article of sale, Customer may claim compensation for damages not to exceed 0.5% of the value of such article for each week in which the article of sale is not delivered provided it can demonstrate it has experienced an actual loss. Indemnity claims from Customer exceeding 5% of the respective value of goods shall be excluded in all cases of delayed delivery.
5.6 The parties agree that Customer may terminate the contract after giving Supplier a grace period for compliance with its obligations of not less than four weeks.
5.7 If the failure to deliver occurs as a result of force majeure, for example as a result of mobilisation, war, riot, natural disaster, interruption of communication links or similar events such as a strike or lockout, the relevant delivery period shall be automatically extended. The same shall apply if such incidents affect Supplier’s suppliers.
6 Transfer of risks
6.1 Unless otherwise agreed, all risks and rewards are transferred to Customer on delivery of the goods ex works (EXW Incoterms 2010). If Supplier is responsible for shipping, it may freely determine the type and form of shipment.
6.2 Delivered goods have to be accepted by Customer even in case of minor defects, notwithstanding the rights specified in section 9 of these terms and conditions (Period of Warranty).
6.3 If the shipment of goods is delayed for reasons that are not attributable to Supplier, the risks shall be transferred to the Buyer at the initially designated time of delivery ex works.
6.4 All shipments will generally be made in Supplier’s standard packaging. However, Supplier may choose special types of packaging at its discretion and any expenses incurred shall be borne by Customer.
7 InsuranceDelivery may be insured against breakage, carriage damage and fire at the request and cost of Customer. This shall also apply if the parties agree to freight paid delivery. If such insurance has been purchased, Supplier shall be informed immediately of any carriage damage.
8 Warranty in respect of defects
8.1 If Customer inspects the goods immediately upon receipt they may not file a claim for recovery against Supplier alleging flaw or defect in the quantity or quality of the goods. Customer may file for recovery against Supplier for defects in the quantity and quality of goods received baled or packaged provided that it does so within four days following their receipt and such defect is not due to chance, inherent vice or fraud. A claim based on internal defects of the article of sale made within 30 days of delivery is a prerequisite for any right of recovery on such grounds against Supplier (Articles 336, 342 Commercial Code). Claims based on such flaws and defects shall become time-barred at SIX MONTHS from the delivery of the article of sale (Article 1490 Civil Code).
8.2 In case of termination of the contract, Customer shall return the article sold and Supplier shall reimburse the price paid after reducing the value of returns by at least 15% of the net invoiced price for costs or servicing and reconditioning. Such reduction may be higher depending on the case, and Customer may demonstrate a lower reduction.
8.3 Supplier’s liability does not extend to natural wear and tear or to damage caused after the transfer of risks and rewards due to negligent or unforeseen use or exposure to unforeseen harsh environments or products or to external handling of the material delivered. Any claims for defects or damage caused by insufficient or inadequate calculations or documentation made or delivered by Customer or due to the use of inadequate or insufficient means or mechanical, chemical, electrochemical, electromagnetic or electrical influences that do not correspond to the intended use of the material delivered are excluded.
8.4 If the delivered material is moved after delivery to a place other than the domicile of Customer, Supplier shall not bear the additional costs for such movement including carriage, travel, labour and material costs as long as such movement does not correspond to the intended use of the delivered material about which Supplier has been duly informed by Customer.
8.5 In all cases Customer agrees to take all possible and reasonable measures to reduce the financial impact of its claim for remedy and to reduce potential damage.
8.6 Customer agrees to return the defective product to Supplier or dispose of it as instructed by Supplier or keep it available for inspection and testing.
9 Period of warranty
Notwithstanding that agreed in section 8.1, claims arising from the warranty in respect of defects shall lapse at six months from the delivery of the article of sale as long as the law does not provide for a mandatory longer term. After expiry of that period, Customer may only return the goods delivered provided that such goods do not show signs of wear, Customer bears return shipping charges and Supplier accepts the return.
10 Warranty of title
10.1 If the use of the delivered articles infringes any industrial or intellectual property right in the contract territory of Customer, Supplier shall endeavour either to provide Customer with the ability and/or right to continue using them or to amend the article under equity so that the infringement of such rights ceases. If this is not possible at a financially reasonable cost, both Supplier and Customer have the right to terminate the contract. In addition, Supplier agrees to hold Customer harmless against any claim made by a third party holder of the industrial or intellectual property rights provided such rights are undisputed or legally established by final court ruling or arbitration award.
10.2 The obligations indicated in section 10.1 are only applicable if a) Customer immediately informs Supplier of the alleged infringement of the aforementioned rights and the claims made against Customer; b) Customer gives Supplier all reasonable assistance in defence against the claims made; c) the grounds for the claim made against Customer are not an instruction given by Customer; and d) the claim made against Customer is not due to a modification of the article sold made by Customer that was not authorised by Supplier or due to use of the article sold in a way not in accordance with this contract.
11 Liability and damages
Supplier shall be liable for damages caused in case of fraud in fulfilling its contractual obligations. In all other cases, and without prejudice to mandatory legal provisions, Supplier’s contractual and tort liability is limited to acts of gross negligence. If Supplier has purchased liability or defective product insurance, it agrees to transfer to Customer any claims against the insurance company and such transfer shall release Supplier from its liability up to the cover of the transferred claim against the insurance policy. In all other cases any liability and compensation for other damages, including consequential damage such as loss of production or loss of use of the article sold or business interruption, are expressly excluded.
12 Failure to perform, default of delivery
12.1 Customer may terminate the contract without prior notice due to loss or deterioration of the article sold before delivery resulting from unforeseen or no-fault accident of Supplier. Moreover, in case of loss or deterioration of a part of the goods not attributable to Supplier, Customer shall be obliged to receive a part and the sale concluded with respect to the articles received as long as delivery is divisible and there is a justified interest in partial delivery. In this case Customer shall pay or Supplier shall return only the price for the part delivered and excluding buyer's right to ask for performance or termination of the contract for the remainder. Any further liability for Supplier is exclusively subject to section 11. If Customer refuses without just cause to accept the purchased items (default of the creditor), Supplier may request performance or termination of the contract and in the former case shall deposit the goods with the court.
12.2 If Supplier fails to deliver the goods sold in the stipulated period, Customer may with advance notice and setting a reasonable delivery time request performance or terminate the contract in accordance with applicable legal provisions. Any further rights as a result of the delay are exclusively subject to sections 5 and 11.
13 Sale to a third party
Customer may resell the article purchased in the ordinary course of its business.
14 Confidentiality, industrial property rights
14.1 Supplier reserves all property rights and copyrights and any other commercial and industrial property rights as well as its knowhow concerning the article sold including all documents, drawings, plans, manuals, technical descriptions, cost estimates and other tangible, intangible or electronic information. Such information may not be copied or used for any purposes other than as agreed in this contract or disclosed or made available to third parties (even upon request) or published. The same applies to Supplier’s manufacturing, research and trade secrets to which Customer has access or otherwise becomes aware of.
14.2 Customer acknowledges all patent, copyright and other intellectual, industrial and commercial property rights of Supplier, including rights to any software provided, irrespective of whether such rights are governed by Spanish or foreign law. This protection also extends to any copies of any software provided. Sub-licensing to third parties is not allowed without written consent from Supplier.
14.3 Any reproduction of any articles sold including their components or parts is prohibited. Supplier will take legal action in case of violation and may claim for damages, including punitive damages if applicable.
14.4 Reverse engineering, i.e. analysis of the structure and the function of the software provided by Supplier, is also prohibited.
14.5 The above obligations shall apply unless Customer can prove that such data was already in its possession prior to delivery by Supplier, or it was given access to such data by a duly authorised third party independently of the sale and delivery of the article sold, or that the data in its possession are in the public domain regardless of this transaction without such public domain being attributable to Customer.
15 Social responsibility and code of conductIt is extremely important for Supplier that all business activities take into account the social responsibility of the employer to its employees and society in general and Supplier applies this principle to itself and to its customers, suppliers and business partners. Therefore both Supplier and Customer agree to respect the policy of the UN Global Compact (Davos, 01/99).
16.1 Pursuant to Spain’s Data Protection Act 15/1999, of 13 December, Customer is informed and accepts the inclusion of their personal data in the computer files of Supplier’s company and of the other companies in its group which shall be stored confidentially under their responsibility subject to any compulsory release. The purpose of such files is customer, accounting, tax and administrative management as well as information about and marketing of products offered on the website and conducting promotional, advertising and information activities by any means (email, postal mailing, landline, mobile phone, etc.) about their portfolio of products that may be of interest in order to expand and improve their products by tailoring their offerings to the preferences and needs of their Users and to enable personalised browsing of the website.
16.2 Customer may exercise their rights to view, change, delete and object to the use of their personal details by writing to Supplier at the address stated in these terms and conditions.
16.3 SMARTLIFT undertakes when using the data included in the file to respect their confidentiality, use them in accordance with the purpose of the file and comply with its obligation to safeguard such data and take all measures to prevent their alteration, loss or unauthorised processing or access in accordance with the provisions of the Security Measures Regulations for computer files containing personal data enacted by Royal Decree 1720/2007, of 21 December, enacting the implementing Regulations of Act 15/1999.
16.4 Personal data security
In order to safeguard the security of your personal data, we hereby inform you that SMARTLIFT has taken all necessary technical and organisational measures to ensure the security of personal data against alteration, loss or unauthorised processing or access as required by Royal Decree 1720/2007 on the security measures regulations for files containing personal data.
17 Links to our website
Linking to our website does not confer any rights to it and is authorised only to enable access to our website. Reproduction of the images and contents of our website on other websites whether in part or in whole is prohibited. Furthermore, simply linking to our website affords no right to claim to be a SMARTLIFT collaborator or partner.
Imitation whether in part or in whole of our website is strictly prohibited.
No links to https://smartlift.es/ from any other website may be created without the express prior consent of SMARTLIFT.
During the performance of the contract Customer and Supplier shall use the required resources (in particular material, energy and water) efficiently to minimise their environmental impact (in particular waste, wastewater, air and noise pollution). This also applies to logistics and transport.
19 Place of performance and jurisdiction
19.1 Supplier’s registered address is the place of performance for deliveries and services and to determine international jurisdiction.
19.2 All written communication to Supplier provided for in these terms and conditions shall be sent directly to Supplier’s registered address stated above in these terms and conditions.
19.3 The parties expressly submit to the courts of Barcelona (Spain) to resolve any disputes arising out of the interpretation and/or performance of this contract. Supplier may alternatively and at its discretion take action in the courts for Customer’s registered address.
20 Applicable lawSpanish substantive law applies to the contractual relationship between the parties, expressly excluding the application of the United Nations Convention on Contracts for the International Sale of Goods, made in Vienna, of 11 April 1980 (CISG).
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