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§1 General considerations.
1.1 All sales and deliveries to be performed by Q-RAILING EUROPE HOLDING GMBH, SPANISH BRANCH (hereinafter referred to as the “Vendor”) shall be governed solely by these General Conditions of Sales and Delivery (hereinafter referred to as the “General Conditions”), except in all matters that are expressly agreed otherwise and in writing with the Vendor. Where relevant, special conditions will take precedence over these General Conditions, but only in the event that they are in writing and signed by all contracting parties. In any case, those General Conditions that have not been repealed or surpassed by a special condition will still be considered as valid and effective. The Vendor reserves the right to modify these General Conditions of Sales and Delivery at any moment. Therefore, it is recommended that the User/Buyer carefully reads the general conditions every time that he accesses our Web page. In any case, the conditions must be accepted prior to purchasing any product available on the web page.
§2 Offer and placement of orders.
2.1 The Vendor’s offers are not binding. For an order to be considered as accepted and successful, the Buyer must receive express, written confirmation from the Vendor, determining the scope of the order. Any variation to the scope of the order and/or extension, any offer, commitment or clarification regarding the scope of the General Conditions or additional agreement by the Vendor, or any of its employees, shall be valid solely with express, written confirmation from the Vendor.
2.2 The models, illustrations, drawings, calculations, descriptions, measurements, weights, dimensions and technical data as well as any other type of information regarding the Vendor’s products included in catalogues, brochures, leaflets, technical literature and other documentation are offered as a guideline and are not binding.
2.3 Any documentation mentioned in point 2 above issued to the Buyer belongs to the Vendor, who reserves title of any intellectual and/or industrial property rights which may arise from the aforementioned documentation. Accordingly, the copying, reproduction, modification or total or partial distribution of the documentation and/or contents, in any format or media, and the assignment by the Buyer of this documentation for use by third parties or its use for other purposes other than those related to the fulfilment of the order are expressly prohibited.
3.1 The prices applicable to the Buyer are those in force at the time of the order and contained in the quote sent by the Vendor, notwithstanding the condition set out in point 3 of this article. Prices are stated in Euros, without including value added tax (VAT) or any other tax or fee, which will subsequently be added to the invoice at the corresponding rates. Likewise, prices do not include postage, insurance or any other transport or delivery costs. Where relevant, transport costs will be invoiced separately. In the event of pre-paid delivery, the Buyer will pay the Vendor postage costs in advance, as well as any other additional costs incurred. The Buyer will have the right to deduct these costs from the invoice amount. Information regarding freight costs is offered as a guideline and is not binding, so any changes that may occur until shipping takes place will be assumed by the Buyer.
3.2 Any packaging material delivered by the Vendor will be considered as non-recoverable and will therefore become the property of the Buyer. Thus, packaging may not be returned. Accordingly, the Vendor is not responsible for the collection of packaging. According to Spanish Law 11/1997, of 24 April, regarding packaging and packaging waste and Spanish Royal Decree 782/98, of 30 April, approving the Regulations for the development of the previous Law, as final recipient of the packaging, the Buyer is responsible for its appropriate environmental treatment (appraisal, re-use or recycling).
3.3 The Vendor reserves the right to make corresponding adjustments to the price, even if these feature on an order confirmation, when within the maximum period of two (2) months between the conclusion of the corresponding contract and the delivery of the products, there are modifications to the factors taken into account to determine the price, including increases in the prices of materials and raw materials, modifications to foreign exchange rates, the increase in salaries and non-salary costs or any other costs that have a direct effect on the sale price.
§4 Payment conditions.
4.1 Payment shall be made within thirty (30) calendar days after receipt of the invoice, on the payment terms agreed between the parties. Any extension to the payment term may not exceed the limits established in Spanish Law 15/2010, of 5 July, amending Spanish Law 3/2004, of 29 December, combating late payment in commercial transactions. Unless otherwise agreed, payment will be made at no extra charge. When the Vendor has granted some form of discount by virtue of an express, written agreement, the corresponding reduction will be applied to the net amount of the invoice, after deduction, where necessary, of discounts, transport costs and other corresponding costs.
4.2 In the event of a delay in payment by the Buyer, he will have to pay the Vendor, with no prior notification, and as of the payment due date, late-payment interest, which will be calculated by adding 3 percentage points to the annual interest rate applied by the European Central Bank, without prejudice to the Vendor’s right to make any subsequent claims.
4.3 However, the Buyer has the right to demonstrate that no damage or significantly low damage has been incurred due to the delay in payment.
4.4 The Vendor is not obliged to accept bills of exchange or cheques as payment, except when justified for reasons of contractual compliance and through express, written agreement by the Vendor. Nevertheless, when the Vendor accepts bills of exchange as payment, the Buyer shall bear the costs thereof, such as withdrawal and discount costs and corresponding fees. Payments made with bills of exchange or cheques will not be considered as complete until the exchange value has been received in the Vendor’s bank account.
4.5 In the event that there is a delay in payment, the Vendor, without prejudice to any other applicable rights, has the right to demand the appropriate safeguards from the Buyer, or payment in advance for pending orders, as well as to declare the immediate conclusion of all pending obligations deriving from the contractual relation between the parties, without resulting in the termination of the contract.
4.6 In the event that the Vendor has debts with the Buyer, the latter does not have the right to withhold and compensate his own debts with those of the Vendor, except when the Vendor’s debt has been thus declared in a final ruling.
§5 Delivery and compliance.
5.1 The delivery and compliance term shall be counted from the date of dispatch of the order confirmation by the Vendor. Notwithstanding the foregoing, the delivery deadline will not begin until the Buyer has obtained all necessary licenses, has clarified all technical points relating to the requested product, has fulfilled his legal and contractual obligations and has provided the Vendor with all information necessary to perform his obligations.
5.2 Delivery and compliance terms will be extended in the event of delays for reasons beyond the Vendor’s control, despite having acted with due care. As a guideline, causes for delay include, but are not limited to, the following: wars, riots, natural disasters, strikes, lockouts and other causes owing to labour conflicts, failure in third party deliveries, as well as reasons of force majeure covered by applicable law. Likewise, the delivery term will also be extended when the Buyer requires modifications to the order, which are accepted by the Vendor but which, on the Vendor’s reasonable judgement, require an extension to the delivery term. 5.3 The Vendor’s compliance with the delivery obligations is subject to the Buyer’s prompt and correct compliance with the obligations. When the Buyer rejects the delivery of the product or the provision of a service within the agreed term, the Vendor has the right to set a new appropriate term for the delivery or service. If the Buyer rejects the delivery within this new term, the Vendor may terminate the contract and claim damages for breach of contract, including all of the additional costs incurred. In this case, the risk of loss or deterioration of the product is transferred to the Buyer from the moment the default of acceptance occurs.
5.4 The Vendor reserves the right to make partial deliveries of the requested products or perform partial services and to invoice these partial deliveries and services separately, when agreed in writing with the Buyer.
5.5 The Vendor may suspend delivery of a product when the Buyer has breached any of the contractual obligations of the order, particularly with regard to payment.
5.6 In the event that the delivery term of a product is exceeded for reasons directly attributable to the Vendor, the latter will not be in default until a new delivery term is established and the Vendor is delayed with regard to the new term. If the Vendor exceeds the new term, and the Buyer sets a new reasonable delivery term, the latter may terminate the contract if he has warned the Vendor that breach of the new term would lead to the rejection of the order if the delivery has still not been completed. The Buyer will only have the right to claim for the damages incurred for breach of contract if their cause is directly attributable to the severe culpable or negligent conduct of the Vendor. In any other situation, liability for damages is limited to fifty (50 %) per cent of the damage caused.
5.7 The Vendor is not obliged to refund the delivered products if for any reason they are no longer in production or have been removed from the current product catalogue.
5.8 When there is a delay to the delivery terms for reasons attributable to the Buyer, he will assume the additional transport and storage costs incurred.
§6 Transport and risk transfer.
6.1 All transport, including loading and unloading, shall be carried out on behalf of and at the risk of the Buyer, as well as product insurance. At the request of and on behalf of the Buyer, the Vendor will insure the products against damage, fire, flooding or any damages incurred during transport.
6.2 As far as possible, the Vendor will take into account the Buyer’s instructions regarding transport and the corresponding journey. Any costs incurred will, in any case, be covered by the Buyer, even if pre-paid carriage has been agreed.
6.3 The risk of damage, destruction or theft of the products dispatched by the Vendor will be transferred to the Buyer as soon as the products leave the Vendor’s warehouses. In the event that the Buyer is in default of acceptance of the products, the risk of loss or deterioration will be transferred to the Buyer from that moment.
§7 Compensation and Guarantee.
7.1 Any information, specifications or data, as well as technical support provided by the Vendor to the Buyer do not exempt the latter from carrying out the necessary checks and inspections of the delivered products (hereinafter referred to as the “Goods”).
7.2 Once the Goods have been received, the Buyer will immediately examine them to check for any possible faults. Otherwise, the Goods will be considered as accepted.
7.3 The Vendor will only accept claims in writing, including the corresponding receipts, made within the period of 8 days after receipt of the Goods. In the event of hidden faults, as soon as they have been discovered claims must be made within the maximum period of 6 months from receipt of the Goods.
7.4 The Buyer’s guarantee is limited to the repair, replacement of the faulty Goods or the proportional reduction of the price of the Goods in the judgement of experts, without prejudice to the Buyer’s right to termination due to hidden faults.
7.5 Under no circumstances will the Vendor accept returns of the disputed Goods without prior express consent.
7.6 In the event that the fault is not repaired and/or there is a delay in the established terms for reasons attributable to the Vendor, the Buyer may decide between the replacement of Goods, termination of the contract including the payment of any costs that may have been incurred or requesting a discount for a proportional amount of the price of the faulty Goods. The Vendor will be freed from any liability if the Buyer does not comply with the installation, use, operation or maintenance instructions sent by the Vendor, or if the Buyer uses the Goods for uses other than their normal use or changes or manipulates any of the parts.
§8 Damage claims.
8.1 The Vendor’s responsibility for damages claimed by the Buyer for any reason will not exceed the amount indicated in the corresponding invoice. This will not apply in the event of gross negligence or intentional misconduct by the Vendor, in which case the Vendor’s responsibility will be unlimited.
§9 Reservation of Title.
9.1 The Goods delivered are subject to reservation of title in favour of the Vendor until the Buyer fulfils his payment obligations, including interests and any other costs incurred from the business relations with the Buyer.
9.2 The Buyer is authorised to dispose of the Goods subject to reservation of title during the ordinary course of his business.
9.3 The reservation of title also extends to the products resulting from the transformation or improvement of the Goods, so the Vendor will retain ownership of them. In the event of the linking or attachment of the Goods subject to reservation of title to third-party products, the reservation of title shall still apply, and the Vendor will become co-owner of the new product in the proportion corresponding to the book value of the products subject to reservation of title prior to the attachment.
9.4 The Buyer assigns the Vendor all corresponding rights and claims with third parties for the sale or other legal transactions of the Goods subject to reservation of title, including the corresponding proportion of the Goods object to linking or attachment to another product as explained in section 3 above.
9.5 The Buyer is obliged to immediately notify the Vendor, in a reliable manner by registered letter, in the event of the provision of the Goods subject to reservation of title to a third party, and provide information regarding the corresponding payment obligations.
9.6 The exercise of the reservation of title on the affected Goods will not be understood as a termination of the contract.
9.7 The Buyer is not authorised to pledge the supplied Goods or payment obligations to third parties, nor transmit or assign them, until full payment of the Vendor’s obligations/claims has been made.
9.8 When the value of the guarantee exceeds the Vendor’s claims by more than 20 %, by request of the Buyer, the Vendor shall commit to unlock the corresponding guarantees until the excess is covered. §10 Final provisions. 10.1 These General Conditions are subject to Spanish law. 10.2 The Vendor and the Buyer, if the latter is a trader, with express waiver of any other jurisdiction to which they might have recourse, agree to submit any dispute arising from the interpretation and compliance with these General Conditions, including actions on a bill of exchange, to the courts of Barcelona (Spain). Likewise, the Vendor reserves the right to pursue legal actions against the Buyer in the courts of his place of residence. 10.3 In the event that one or several of the provisions of these General Sales Conditions shall be or become partially or entirely null, it will not affect the validity of the rest of the General Conditions
Q-railing Europa Holding GmbH - Sucursal en España
C/Isaac Rabin 9
Polígono Industrial Montfullà
17162 Bescanó (Girona)