Purchasing and Marketing Conditions
You are informed that this document contains the General Purchasing Conditions of ENCAJA applicable to the business relationships with PROVIDERS AND SUPPLIERS, with ENCAJA acting as the purchaser, party supplied, distributor and agent, including the existence exclusive rights for the promotion, sale and distribution of all the packaging systems, services and products of the SUPPLIER, as indicated in its catalogue (the products), under the trademarks and the industrial and intellectual property rights of the SUPPLIER (the trademarks), in SPAIN (the territory) and with the clients suggested by ENCAJA following the system indicated below.
The SUPPLIER accepts the performance by ENCAJA of the marketing of all the products in its catalogue and of those it may manufacture or market in the future, by means of the marketing conditions ENCAJA employs regarding the clients of the former. ENCAJA may present its clients to the SUPPLIER, via invitations, enquiries, orders, invoices or purchase orders, there being the possibility of extending to territories other than that initially granted, through an agreement between the parties. ENCAJA will decide which orders are delivered from its installations and which from the Stores of the SUPPLIER.
The SUPPLIER will not grant to any other person or company the right to represent, market or sell in any manner the aforementioned products or any other analogous ones, to the same clients presented by ENCAJA for which the latter will have exclusive commercial rights. The SUPPLIER may deal directly with the clients, without any direct intervention of ENCAJA, informing ENCAJA on such management and paying the latter the commission agreed on further on. This obligation will have a duration equivalent to the time the clients presented by ENCAJA have orders with you during the same period of the agreement.
The prices offered will be fixed and remain unvaried. These may only be reviewed half-yearly with the written authorisation of ENCAJA. When authorised by ENCAJA, the prices may only be modified on 30th June and 31st December. Notifications will be sent to the official emails of ENCAJA at least 4 weeks in advance to the dates indicated, otherwise it being understood that the prices will be maintained up until the following review. In any case, the modification performed in each period may not exceed the consumer price index (CPI) published by the Spanish National Statistics Institute for such time period. Under no circumstance may the total annual price review exceed the corresponding annual CPI once this is officially set.
ENCAJA will be responsible for sales promotion and distribution management, for deciding who contracts the different services for transporting and handling the products from the agreed place of origin to the destination point, and for delivery to the final client. The SUPPLIER will be responsible for the appropriate packaging and marking of the products and for full quality control on the products ordered by ENCAJA, prior to their delivery.
The SUPPLIER agrees to inform ENCAJA on the acceptance or rejection of the operation proposed by ENCAJA. If nothing is informed within a period of 24 hours, the order will be considered accepted and ENCAJA will notify on the way to operate. In the case of lack of delivery, partial, irregular or faulty delivery, or of breakage of the stock agreed in this document, ENCAJA will charge the SUPPLIER for the justified expenses affecting the former, may this be in production, transport or final customer service.
For ENCAJA, repeated use consumption products are those delivered at least once a month, with a price list in force from the first order delivered, this considered to be fixed under Delivery at Place (DAP) conditions at the ENCAJA store, with such products, independently from the risk inherent to the Incoterms agreed, will be the property of ENCAJA from the moment the order is confirmed.
The SUPPLIER will hand over the products, work or services ordered, where applicable, and the necessary documentation (drawings, plans, specifications, etc.), together with the appropriate work planning, to ENCAJA for this to perform appropriate and uninterrupted operations with its clients. The delivery will be in a good state, in proper conditions, providing the quality required by ENCAJA and within the agreed period, all these being basic elements of the contract.
ENCAJA may perform whatever previous manufacturing and quality tests it wishes at the installations of the SUPPLIER, while also on the quality of the materials and manufacturing of the products, for these to be in accordance with the qualities described in the catalogues and orders and required by ENCAJA. ENCAJA may also perform weight tests, measurements regarding quantity, quality and delivery periods, by means of an audit by a specialised laboratory, as soon as possible throughout its ordinary business activity operations, within a specific period from the reception of the product or services at its installations. ENCAJA will inform the Provider immediately on any non-compliance due to failures, defects or delays. Whenever these are obvious, this will occur at the time of delivery or within the following 7 working days. If they are not obvious, within a period of 60 working days following the correct reception. In both cases, the SUPPLIER will bear the total cost of the audit. In the case of any non-compliance above the tolerance limits agreed regarding quality or quantity (if not agreed otherwise, the maximum tolerance or manufacturing shrinkage margin will be 0.5% over the specification accepted by ENCAJA): (i) a quality or quantity deviation or shrinkage up to 10%, will give ENCAJA the right to a price reduction proportional to the depreciation of the product received, with an objective non-compliance penalty doubling the depreciation percentage; or, (ii) a quality or quantity deviation or shrinkage above 10%, will give ENCAJA, at its own discretion, the right to (a) demand the collection of the non-compliant product and a complete new delivery of the goods in accordance with the quality required by ENCAJA, with an objective non-compliance penalty doubling the depreciation percentage, plus a price penalty and a delay penalty set at up to 25% of the total value of the contract; or (b) demand the cancellation of the contract, with a penalty of up to double the contract price, plus that for any damages directly or indirectly related to such non-compliance.
Full acceptance of a supply, work or service outside the agreed period will not imply any type of waiver of the right to demand penalties, indemnities or compensation for damages due to the delay or the defects they may present.
Once the operation is accepted, when ENCAJA acts as distributor, the SUPPLIER will hand in to ENCAJA the amount of products ordered on the dates indicated by ENCAJA, for the latter to meet the client purchases agreed to be provided at ENCAJA stores. The SUPPLIER will keep another amount in its stores when dealing with repeated use consumption products. In the case of non-compliance with the delivery date, the SUPPLIER will be responsible for all the delays caused to ENCAJA and its clients, paying a penalty in a percentage of the total value of the delayed (1% per week over the value of the bill if no other is agreed), without prejudice to the damages caused to ENCAJA and passed on to the final client, which may be claimed separately from the SUPPLIER. ENCAJA agrees to send information as soon as possible on the products distributed and delivered, based on which the SUPPLIER will issue the corresponding bill to ENCAJA. On its part, ENCAJA will sent its bill straight to the client. The period is considered an essential part of the contract with the SUPPLIER.
Whenever ENCAJA decides to act as commercial agent, it will send to the SUPPLIER the amounts corresponding to operations performed, invoices or orders received, via the means jointly agreed. Every month, the SUPPLIER will send to ENCAJA a list of bills to clients promoted by ENCAJA so that, based on these, ENCAJA may bill the SUPPLIER for the agreed commission on the sales or the commissions corresponding to the aforementioned bills. The COMMISSION received by ENCAJA will be a percentage of the billing (if not agreed otherwise, 10% calculated from the total billed, exclusive of VAT). Also, ENCAJA may mark its DISTRIBUTION margin (total turnover, exclusive of taxes) in those operations in which the service is performed from the stores of ENCAJA or performing the sale directly. The commission will be paid upon receiving the monthly bill from ENCAJA.
In any other situation in which ENCAJA may act, by its own free will and interest or following the indication by the SUPPLIER, as purchaser or supplied party, and, by virtue of this, ENCAJA performed purchases or supplies exceeding 50000 € during the financial year, the SUPPLIER will have the obligation to pay ENCAJA a percentage of the annual turnover within a period not exceeding three months from the close of the financial year (if not agreed otherwise, this will be 2% calculated from the annual turnover, exclusive of VAT). In the case ENCAJA does not request the payment within the period indicated, this will not be understood as a waiver of the claim to such amount. In any other situation and function of ENCAJA other than those described in the previous sections, ENCAJA will bill and collect them at the market price in accordance with its Conditions and will be paid by the SUPPLIER in the manner agreed by both parties.
In the case ENCAJA should perform other functions different from those already stated, following the indications of the SUPPLIER, these will be remunerated at market prices and the part agreed will be at the cost of the SUPPLIER, either directly paying the amount of such activities or doing so via ENCAJA. The remaining expenses will be paid by the parties according to the agreements these may reach.
In any of the aforementioned cases, the SUPPLIER will guarantee the product, work or service provided and will repair any defect or error in these. The guarantee period will be twenty-four months from the moment the products or services are received by ENCAJA. The SUPPLIER will be responsible to the greatest extent possible for the products supplied regarding minor breaches, strict liability and fortuitous events. The SUPPLIER will be responsible for the expenses, costs, direct or indirect, consequential and moral damages, regarding the product or service that is faulty, does not reach the quality level required or is delayed when delivered to ENCAJA. ENCAJA will inform the PROVIDER of the possible existence of liabilities.
ENCAJA may use the trademarks or rights and designs of the SUPPLIER in order to promote the products granted within the scope of the contract. ENCAJA is authorised to place its name and trademarks. ENCAJA will try to notify the SUPPLIER on any infringement that comes to its attention regarding the trademarks or trade names or other proprietary symbols of the SUPPLIER, for the latter to take the necessary measures and cover the costs to defend its rights and those of ENCAJA in the promotion. Each party will ensure the confidentiality of all the information received or known from the other party, including any kind of technical and trade information and responding to any infringement, while this contract is in force and for two years following its expiry.
The contract will have a duration of three (3) years from the start of the activity between the parties, being renewed automatically for yearly periods at the end of the initial one, except in the case of a claim in writing three months in advance by any of the parties.
Neither party may, fully or partially, assign, subrogate or transfer the rights, obligations or, in general, its legal position deriving from this contract, to any third party without the written consent of the other, this contract being considered personal and non-transferrable.
Any notification required as a consequence of this contract will be by registered mail to the registered address or place of business of each party. Email communications will equally be valid. ENCAJA: email: firstname.lastname@example.org; SUPPLIER: email the orders are sent to.
This contract will be interpreted in good faith and governed in accordance with the bases established in this contract and by the Spanish Commercial Law, expressly renouncing to any jurisdiction other than that of the courts and tribunals of Oviedo (Spain).