1.1.- These conditions of sale, hereinafter “SCS”, will be applicable (i) to all sales operations of products that LUMAR QUÍMICA, S.L. (hereinafter “LUMAR”) carries out with its Customers for the orders placed by them and accepted by LUMAR, as well as (ii) to supply or any other type contracts by virtue of which LUMAR sells products regularly or punctually to its Customers, all globally considered as “LUMAR sales”.
1.2.- The Customer’s purchase conditions will not apply to LUMAR sales in any case, nor will the conditions or proposals that the Customer can incorporate into his order, which will be considered not accepted or not valid, unless expressly accepted in writing by LUMAR.
1.3.- When placing the first order, LUMAR will provide the Customer with a copy of these SCS by email, in which LUMAR will indicate to the Customer how to locate these SCS on the LUMAR website: https://lumarquimica.com. From that moment, the Customer accepts without reservation of any kind that by placing an order with LUMAR or signing a contract under which he acquires products from LUMAR, he is fully accepting these SCS.
1.4.- Any sale of LUMAR will be governed by these SCS and by the special conditions that LUMAR may eventually agree with the Customer. In case of discrepancy between the special conditions and these SCS, the special conditions will prevail, provided that they have been expressly accepted in writing by LUMAR.
2.1.- Orders will be sent by the Customer in writing, via email, specifying and clearly identifying the class and name of the product, the quantity of product (only in case of “closed” orders), and the delivery date concerned. It will be understood that the order is “closed” when it indicates the specific quantity of product that LUMAR must deliver on a specific date, and it will be understood that the order is “open” when the order only indicates a forecast or minimum figure of the product that LUMAR must deliver to the Customer within a certain period of time, being therefore an estimated value. In the case of “open” orders, the determination of the successive delivery dates and quantities to be supplied will be specified by the customer by means of the corresponding note or sub-order.
2.2.- The order must be accepted by LUMAR so that a binding sales agreement between the parties is understood to have been closed. Acceptance must be made within a maximum period of 7 calendar days from receipt of the order. Once the order has been accepted, it can no longer be cancelled, either total or partial, unless agreed by both parties in writing.
2.3.- LUMAR has no obligation to accept any order, and therefore, will have the right to reject it, without any type of responsibility arising from it. In any case and under all circumstances, LUMAR must inform the Customer within the period of 7 days indicated in the previous section about the acceptance or not of his order.
3.1.- The products sold by LUMAR will comply with the properties provided for in the technical specifications document and in the MSDS (safety sheet) of the product, or those that both parties have agreed in writing, where appropriate.
3.2.- The properties and technical specifications of the product may be altered if the product is subjected to improper use, or is mixed with other products or components.
4.- Delivery of orders
4.1.- When accepting the order, LUMAR will indicate to the Customer the delivery date of the order, which must be understood in any case estimated or approximate, not being in any case an essential condition of the contract. As far as possible, LUMAR will endeavour to meet and supply orders on the date requested by the Customer, but will not be obliged to do so. LUMAR shall not be liable for any direct or indirect damages that the Customer may suffer in the event of delays in the delivery of orders.
4.2.- If the estimated delivery date set by LUMAR does not correspond to the date requested by the Customer in his order, he will have 5 calendar days to withdraw the order, for which he must notify LUMAR in writing within that period.
4.3.- LUMAR may make partial deliveries of the order, accruing at that time the payment obligation of the Customer in relation to the part of the order supplied.
4.4.- The delivery of the products will be made in accordance with the INCOTERMS 2020 rules, agreed for each order, or contract. The risk, the responsibility of transport and insurance, will in turn be defined according to the INCOTERMS 2020 rule applicable to the sale. If there is no contrary provision agreed by the parties in writing, it will be understood that the deliveries are made Ex Works (EXW) in the warehouse of LUMAR located in CISTERNES DEL VALLES, C/Marie Curie 33, 082010 Barbera del Vallés (Barcelona); LDH CHEMICALS LOGISTICS S.A., C/ Pintor Vila Cinca, Pol. Ind. Can Humet de Dalt, 08213 Polinya (Barcelona).
5.- Reception and complaints
5.1.- The receipt of the order will be accredited by the signing of a delivery note by the Customer or his transport company.
5.2.- The signing of the delivery note will imply the customer’s agreement as to the quantity of product delivered. LUMAR will not be responsible for any defect in the quantity of the product that the Customer does not state on the delivery note at the time of receipt of the product.
5.3.- Once the order has been received, the Customer must examine the content thereof to check (i) the conformity of the Product received with the one requested in the order and (ii) the absence of apparent or hidden defects in the products. In case of difference in the products delivered or apparent defects, the Customer will have a period of 24 hours from receipt of the order to claim from LUMAR. In the case of internal or hidden defects, the claim period will be 30 days from receipt of the order.
5.4.- LUMAR will not accept any claim from the Customer for non-conformity with the type of product received, or for apparent or hidden defects of the products that is not communicated to LUMAR within the deadlines indicated in the previous section.
5.5.- Justified claims received on time will only entail the obligation to replace the wrong or defective products with others that replace them, but LUMAR will not be responsible for any loss or damage that may arise for the Customer as a result of the delay or non-delivery of products in accordance with the order, and in particular the loss of profits, or loss of margin or profit.
5.6.- Apart from the provisions of section 5.5 above, LUMAR will not accept returns of products.
5.7.- In case of refusal to receive the products by the Customer, or delay in the withdrawal and / or receipt of the products by the same, LUMAR will have the right to constitute a judicial deposit, being borne by the Customer the costs that said deposit entails.
6.- Price and payment terms
6.1.- The prices of the products will be those that correspond (i) to the price list in force in LUMAR at any time, (ii) to the offers that LUMAR may periodically and temporarily make, or (iii) to those that LUMAR may agree in each case with the customer as a particular condition of an order or contract. To these prices, which include the entire cost of the product, must be added the taxes and duties that correspond in each case.
6.2.- LUMAR shall have the right to modify the price list at any time. These modifications will not affect orders that have already been accepted by LUMAR.
6.3.- In case of placing an order with an erroneous price, LUMAR will warn the Customer of the error in the communication of acceptance of the order, indicating the correct price of the product. In this case, the Customer will have two days from receipt of the communication from LUMAR to accept the corrected price and confirm the order. If the Costumer does not make this confirmation communication within the agreed period, it will be considered that the Costumer withdraws from the order.
6.4.- Unless otherwise agreed, the Customer will pay the agreed price by bank transfer to the LUMAR account within a maximum period of 30 days from the date of issuance of the invoice by LUMAR, which will generally coincide with the date of shipment of the products. In case of total or partial delay or non-payment of the invoice by the customer when due: a) The amount due and not paid will accrue automatically and without the need for prior claim a default interest in accordance with the provisions of article 5 of Law 3/2004 of December 29, which establishes measures to combat late payment in commercial operations, whose annual rate will be equivalent to the legal interest plus 2 points, b) The Customer will be responsible for any refund or return costs that LUMAR may incur, c) LUMAR shall be entitled to automatically suspend the supply of orders in progress until the Customer pays in full the overdue and unpaid order, together with the corresponding default interest, d) LUMAR shall be entitled to give up any other order supplied to the Customer and that the Customer has pending payment, and e) The Client shall bear all expenses, including lawyers and solicitors, incurred by LUMAR in attempting to collect from the Client the amount due and not paid by the Client.
6.5.- LUMAR shall be entitled at any time to set a credit limit to the Customer and to supply orders according to said credit limit. LUMAR shall also be entitled to demand from the Customer a sufficient guarantee of payment.
7.- Retention of title
7.1.- LUMAR reserves the right of full ownership of the products until the Customer has made full payment thereof. Consequently, until the product is paid for by the Customer, the latter will be a mere depositary of the same, assuming however the responsibilities that correspond to him derived from the delivery and transfer of possession of the products.
7.2.- If the Customer resells or uses the product in its production process, and mixes it with other products, or subjects it to any type of industrial process to obtain a final product before paying the price of said product to LUMAR, a) In case of resale to a third party, the Customer will be obliged to assign to LUMAR, at its request, the right to charge for said resold product, so that LUMAR can collect directly from the third party, the price of the product, b) In case of use of the product by the Customer, the reservation of title of LUMAR will extend over a part of the final product obtained by the Customer from the use of the product supplied by LUMAR, equivalent to the cost of the product supplied by LUMAR that has been used for the manufacture of another final product.
8.1.- The Customer is solely responsible for the choice of the product to be purchased, and also for the use to which he intends to allocate it. Therefore, LUMAR is not responsible nor confers guarantee of any kind that the product is suitable for the destination or use to which the Customer intends to allocate the product, and therefore, the Customer will not be entitled at any time to return the product or to recover the price paid for it.
8.2.- LUMAR may technically advise the Customer, verbally, or in the performance of tests before, during or after the purchase of the product, but such advice will not be binding or confer any guarantee. This advice does not release the Customer from carrying out the relevant tests or trials to determine the suitability of the product for the use or purpose for which it is intended to be intended.
8.3.- The liability of LUMAR for damages caused as a result of the existence of defects in the products, will only exist when arising from the application of the Law.
8.4.- In the event that the Law determines that LUMAR is liable for defects in the products sold, the liability will be limited to an amount equivalent to the amount of the order causing the damage, unless an imperative law determines that the liability must be of a higher amount. However, LUMAR shall not be liable in any event for incidental, indirect or consequential damages, loss of profits, or loss of margin, profit or revenue.
8.5.- After one (1) year from the transfer of the risk of the product to the Customer in accordance with the INCOTERMS 2020, LUMAR will no longer accept liability of any kind for defects of the products.
8.6.- The Customer will be solely responsible, completely exonerating LUMAR, for any damage caused to the products, its own employees, or third parties, as a result of improper use, storage, handling or transport of the products, or as a result of not attending or paying attention to the recommendations, warnings or instructions provided by LUMAR.
8.7.- LUMAR will not be liable to third parties, even in cases where there is a breach by the Customer of the regulations on products and chemical substances. The Customer undertakes to hold LUMAR harmless against any claim that may be made by a third party for damages caused as a result of a breach by the Customer of its contractual obligations.
9.- Force majeure
9.1.- LUMAR will not be responsible for the delay or breach of its obligations towards the Customer that are the result of a fortuitous event or an episode of force majeure affecting LUMAR or its suppliers or carriers.
9.2.- By way of illustration, but not limitation, they will be considered as episodes of force majeure, war, natural disaster, strike, stock breakage, etc.., as well as any other unforeseen and unavoidable incident that affects or has an impact on the fulfilment of the obligations between LUMAR and the Client.
9.3.- If the impact caused by the episode of force majeure is prolonged for a period of more than two (2) months, LUMAR and / or the Customer will have the right to terminate and cancel the orders in progress or the contract signed between them, without either party being obliged to assume any type of responsibility.
10.- Applicable law and jurisdiction
10.1.- The contractual relations between LUMAR and the Customer shall be governed by the provisions of these SCS and the particular conditions that may be agreed upon in each case by the parties, and in matters not foreseen, Spanish legislation shall apply, with the express exclusion of the Vienna Convention on the International Sale of Goods of 1980.
10.2.- For the resolution of any dispute arising from the contractual relations between LUMAR and the Client, the parties submit, expressly waiving their own jurisdiction as necessary, to the jurisdiction of the Courts and Tribunals of the city of Barcelona. Exceptionally, for the claim of unpaid invoices when due by the Customer, LUMAR may choose, if it deems appropriate, to file the claim in the Courts and Tribunals of the Client’s domicile.