General Terms of Sale
geral@ota-abrasivos.pt
Tel +351 226 178 423 / 443
Call to national fixed network
[22.05.2022]
Definitions
1. The following definitions apply:
a) “Buyer” means the person who purchases or agrees to purchase the Product(s) from OTA;
b) “Delivery Date” means the date or date range established and specified by OTA when or within which the Product must be delivered;
c) “Delivery” means the moment when the Product(s) is/are loaded and shipped from OTA’s warehouse or the date on which the provision of services begins;
d) “OTA” means Organização Técnica de Abrasivos Lda., a company incorporated under the laws of Portugal, headquartered at Rua António da Silva Marinho, 157, 4100-064 Porto, Portugal, with the unique company number and tax identification number 500.208.859;
e) “Party” means either OTA or the Buyer. OTA and the Buyer are hereinafter collectively referred to as the “Parties”;
f) “Order” means each purchase order accepted for Products sold by OTA;
g) “Price” means the price quoted by OTA which the Buyer agrees to pay for the Product;
h) “Product” means the goods the Buyer agrees to purchase from OTA in the specified quantity;
i) “Terms” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by OTA.
Interpretation
2. The following rules of interpretation apply to these General Terms and Conditions of Sale (“Terms”):
a) Words in the singular include the plural and vice versa, and words referring to any gender include all genders, and words relating to a person include any other legal entity and vice versa;
b) Time periods set out in these Terms refer to calendar days, unless otherwise stated;
c) When the day on which any act or thing is to be done is not a Business Day at the place where the act or thing is to be performed, that act or thing shall be done on the next following Business Day, unless specifically provided otherwise in these Terms;
d) Titles and underlining are for convenience only and do not affect the interpretation of these Terms;
e) Headings define sections solely for organizational and indexing purposes.
3. These Terms apply to all contracts for the sale of Product(s) by OTA to the Buyer and to any written contract to which these Terms are subject, excluding all other terms and conditions, including any terms or conditions that the Buyer may seek to apply in any purchase order, order confirmation, or similar document.
4. All Product Orders will be considered an offer by the Buyer to purchase the Product in accordance with these Terms. In the event of any conflict between the Terms set out herein and any written agreement to which these Terms are subject, the more specific term shall prevail only to the limited extent of such conflict.
5. Both the interpretation of a proposal or offer by OTA and the acceptance of an Order by OTA are expressly subject to the Buyer’s acceptance of these Terms, and OTA objects to and rejects any different or additional terms the Buyer may propose.
6. Any variation to these Terms (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed to in writing by OTA.
7. OTA reserves the right to change these Terms at any time.
8. The date in the heading corresponds to the moment when the version of these Terms is made public on OTA’s website (www.ota-abrasivos.com).
9. Each version of the Terms applies to all Orders received on or after the respective date.
10. After acceptance of an Order in writing by OTA, either by written notification or by actions including shipment of the Products, OTA shall supply the Product at the price stated in the quotation given by OTA or by any other written contract, or, if none exists, at the prices set out in the most current OTA Price List (collectively referred to as the “Quotation”).
11. Verbal agreements made prior to or at the time of contract formation require written confirmation from OTA to be effective.
12. All orders are subject to Minimum Order Quantities (MOQ) and Lots, with a Minimum Order Value (MOV) of €50.00.
13. A variation in the product quantity of plus or minus 10% is permitted by the Buyer when filling an Order for any item subject to processing.
14. The Buyer is invoiced for the value of the product actually shipped.
15. OTA reserves the right to change the price(s) of the Product(s) at any time.
16. The prices indicated may be revised due to changes in factors influencing cost prices, such as wages, raw materials, exchange rates, etc.
17. Orders for immediate shipment will be invoiced at the price in effect on the date the order is received. For deliveries against scheduled orders or any other specifying shipments on a future date, each delivery will be invoiced at the price in effect on the shipment date.
18. Unless previously cancelled, OTA’s quotations are available for acceptance within the period stated therein or, if not specified, for fourteen (14) days from the date of issue.
19. If the Buyer is part of a corporate group or purchasing group and therefore entitled to discounts and/or associated conditions, the Buyer must indicate which terms of the corporate/purchasing group they wish to apply to their account with OTA.
The Buyer cannot claim more than one discount or associated condition for the same financial transaction with OTA.
20. If the Buyer does not designate a purchasing/corporate group for the discount or associated conditions, OTA assumes that the Buyer is not associated with any group.
21. Unless otherwise agreed between OTA and the Buyer, the shipping prices of the Products are set according to the volume and weight of the Product and packaging.
22. In the absence of any special agreement, prices shall be considered EXW (Incoterms® 2020), excluding packaging.
23. OTA may set MOQ and/or Lot requirements for each Product by notifying the Buyer. Orders below the MOQ and/or Lot may be charged at a higher price or may be rejected by OTA at its sole discretion.
24. OTA will make reasonable commercial efforts to ship the Products according to the Product shipping schedule or delivery deadlines established by OTA.
25. For orders for which OTA does not have enough product to ship the Order in full, OTA reserves the right to ship partial quantities and remit the remaining balance at a later date.
26. OTA shall not be responsible for failing to ship an Order within the specified timeframe. The indicated delivery conditions are provided for informational purposes only and do not bind OTA.
27. The quantity and description of the Product(s) must comply with what is established in the respective offer, purchase contract, or Order confirmation and as described in the product specifications issued by OTA.
28. The Buyer shall accept the offered Product, notwithstanding that the quantity delivered may be greater or less than the quantity purchased, taking into account that:
a) The Buyer must notify OTA, in writing, of any discrepancy in quantity within 24 (twenty-four) hours after Delivery;
b) Such quantity discrepancy (above or below) does not exceed 10% (ten percent) of the quantity stated in the Offer;
c) The Price will be adjusted pro-rata to reflect any discrepancy.
29. If the Buyer does not notify OTA in accordance with the previous paragraph, the Product will be deemed in all respects to comply with these Terms, and the Buyer shall be obliged to accept and pay for the Product accordingly.
30. Delivery times communicated to the Buyer or indicated in the Order confirmation are only estimates, and OTA is not liable for delays in delivery or non-delivery.
31. The delivery time is the period from the acceptance of an Order by OTA until the Order is ready to be shipped from OTA’s facilities.
32.
The applicable shipping location will be determined by OTA. The “Delivery Time” does not include the time for shipping the products from OTA’s location to the Buyer’s premises.
33. OTA is not liable for any losses and/or expenses (including loss of profits), damages, or delays caused to the Buyer or its customers arising from late delivery, non-delivery, or late installation of the Product.
34. OTA may, at its discretion, deliver the Product to the Buyer in any number of installments unless it is previously agreed that the Buyer will not receive delivery in installments.
35. If OTA delivers any Product in installments and any of those installments is defective for any reason:
a) This shall not be grounds for repudiation of the sales contract formed by these Terms;
b) The defective performance is a separable breach that only gives rise to a claim for damages.
36. OTA is not liable to the Buyer or any other person claiming through the Buyer for any loss or damage to the Product in transit caused by any event of any kind by any person, even if OTA is legally responsible for the person who caused or contributed to that loss or damage.
37. The Buyer shall be deemed to have accepted the Product upon its Delivery.
38. The Buyer may not refuse Delivery due to minor defects.
39. After acceptance, the Buyer shall have no right to reject the Product for non-compliance with these Terms.
40. Ownership of the Product passes to the Buyer at the moment of its Delivery, and from that point onwards, it shall be managed at the Buyer’s own account and risk.
41. Notwithstanding that Delivery has taken place, ownership of the Product may be claimed and reverted to OTA until:
a) The Buyer has paid the full Price; and
b) No other amounts are owed by the Buyer to OTA.
42. Unless otherwise agreed in writing between OTA and the Buyer, all payments are due within thirty (30) calendar days from the date of issuance of the invoice by OTA.
43. OTA reserves the right to change the payment terms or, if granted, the credit limits at any time, upon written notice to the Buyer.
44. If the Buyer fails to pay any instalment for the Product when due, or if the Buyer’s financial condition becomes unsatisfactory to OTA, at its sole discretion, OTA may, in addition to other remedies, require cash payments or guarantees acceptable to OTA prior to shipment of the Product, cancel an Order and/or suspend deliveries of an Order.
45. OTA, at its discretion, may charge late fees and interest at the maximum legal rate on all overdue amounts.
46. Any delay in payment shall, by operation of law and without notice of default, incur default interest from the due date at a rate of 3-month Euribor +10% per annum, with a minimum charge of €25.00.
47. In the event of non-payment on the due date of the invoice, the amount due under the invoice shall, by force of law and without notice of default, be increased by damages calculated as the greater of 10% of the outstanding amount or €50.00. These damages relate to expenses or disbursements incurred by OTA in recovering any outstanding amounts, including debt collection agency fees or legal fees, and shall be recovered from the Buyer on an indemnity basis, which is acknowledged and agreed by the Buyer.
48. Except in cases of quality defects confirmed by OTA, OTA will not accept the return of Products.
49. OTA and the Buyer are committed to promoting effective Product management and properly handling the environmental, health, safety, and regulatory aspects related to the Product(s).
50. OTA assumes that in the processing and sale of the Product(s), it complies with all applicable local laws.
51. The Buyer is solely responsible for, and at its own expense, complying with all applicable local laws, including, but not limited to, those related to occupational health, safety, and the environment, and must obtain all necessary permits or approvals applicable to the operation, purchase, handling, transport, storage, use, processing, disposal, and/or treatment of the Product(s), as well as the distribution, marketing, sale, and use of products made using or containing the Product(s).
52. The Buyer shall provide appropriate environmental, health, safety, and regulatory information related to the Products to the Buyer’s employees and to the Buyer’s customers of products resulting from or using or containing the Product(s). The Buyer is solely responsible for ensuring that the Buyer’s employees use appropriate Personal Protective Equipment when using the Products.
53. OTA labels and packages its industrial/professional products for resale to industrial/professional customers for industrial/professional use. Unless otherwise indicated on the packaging or in the applicable product literature, OTA’s Products are not intended, labelled, or packaged for sale to or use by consumers, i.e., the general public.
54. When the Products are intended for the general public, OTA issues specific recommendations.
57. The technical information, recommendations, and other statements provided by OTA are based on tests or experience from the Product manufacturers, which OTA believes to be reliable, but the accuracy or completeness of such information is not guaranteed. This information is intended for individuals with sufficient technical knowledge and capability to evaluate and apply their own informed judgment.
58. No license or intellectual property rights of OTA or third parties are granted or implied by this information.
57. The technical information, recommendations, and other statements provided by OTA are based on tests or experiences from the Product manufacturers, which OTA believes to be reliable, but the accuracy or completeness of such information is not guaranteed. This information is intended for persons with sufficient technical knowledge and capabilities to evaluate and apply their own informed judgment.
58. No license or intellectual property rights of OTA or third parties are granted or implied by this information.
59. OTA’s liability for the Product processed by it is limited to repairing any defects or, at OTA’s discretion, ensuring its full or partial replacement within a period not exceeding three (3) calendar months after the Product has been shipped, provided that:
a) The defects have arisen solely from defective materials or processing;
b) The Product has not been subjected to misuse, neglect, or interference;
c) Any accessories used by the Buyer are manufactured or approved by OTA;
d) The product packaging remains intact; and
e) The defective parts are promptly returned.
60. If the Product is not manufactured by OTA, the warranty and/or guarantee from the manufacturer of such goods is accepted by the Buyer and is the sole warranty or guarantee given to the Buyer in respect of the Product. OTA agrees to assign to the Buyer, upon request made by the Buyer, the benefit of any warranty or right relating to the goods that the manufacturer has granted to OTA under any contract or by implication or operation of law, to the extent that such warranty or right is assignable.
61. OTA shall not be liable and the Buyer releases OTA from any claims regarding defective design of any supplied product, unless such design has been fully developed by OTA and liability for any claim has been specifically accepted by OTA in writing. In any case, OTA’s liability under this paragraph is strictly limited to the replacement of defective parts in accordance with these Terms.
62. Unless a different warranty is specified in the applicable Product literature or packaging leaflet, OTA warrants that each Product complies with the applicable Product specification at the time OTA delivers the Product.
63. Any performance results provided by OTA are estimates only. OTA is not liable for damages due to the Product’s failure to meet such values unless specifically warranted in writing. Any written warranties are subject to recognized tolerances applicable to such values.
64. OTA offers no other warranties or conditions, express or implied, including but not limited to any implied warranty or condition of merchantability or fitness for a particular purpose or any implied warranty or condition arising from a course of dealing, custom, or trade usage.
65. If the Product(s) do not conform to this warranty, then the sole and exclusive remedy, at OTA’s discretion, shall be replacement of the non-conforming Product(s) or refund of the purchase price of the non-conforming Product(s).
66. The indemnity referred to in the previous clause is subject to the number of units returned by the Buyer unused, plus a maximum of 10%. The remedy in the previous clause is limited to a maximum number of units plus 10% usage.
67. OTA has no obligation under this warranty with respect to Product(s) that have been modified or damaged by misuse, abuse, accident, negligence, or improper handling by the Buyer.
68. OTA excludes any other liability to the Buyer for physical or financial damages, losses or damages, or for consequential losses or damages of any kind arising from the supply, layout, assembly, installation, or operation of the Product or resulting from negligence or otherwise.
69. Failure to notify OTA within 30 days after Delivery that the Product(s) is/are non-compliant in any respect shall be deemed a waiver of any rights or claims related to such non-compliance.
70. The above warranty and remedy do not apply to experimental or developmental Product(s) sold “as is” and without any warranty.
71. Except where prohibited by law, OTA shall not under any circumstances be liable for any loss, damage, or other remedy arising out of or in any way related to the Product(s) or the sale of Product(s) by OTA, whether direct, indirect, special, incidental, or consequential (including but not limited to loss of profits, revenue, business, opportunity, or goodwill), regardless of the legal or equitable theory under which such losses, damages, or remedies are sought, including warranty, contract, negligence, or strict liability.
72. OTA shall not be liable for any failure to perform its obligations under these Terms due to any force majeure event, war, strike, lockout, industrial action, fire, flood, drought, storm, or other event beyond its reasonable control.
73. Neither OTA nor the Buyer shall be liable for non-performance (except for the Buyer’s obligation to pay for the Product(s) received) if performance is prevented, restricted, or interfered with due to fire, earthquake, or other casualty or accident; inability to obtain materials, energy, or supplies; war, terrorism, or other violence; any law, order, proclamation, regulation, ordinance, demand, or requirement of any governmental agency, court, or intergovernmental body; situations where OTA has insufficient capacity to manufacture or deliver the Order in any product line; environmental, health, safety, or regulatory reasons as reasonably determined by OTA; or any other event or condition beyond its reasonable control.
74. A Party affected by such event, upon notification, shall be excused from performance to the extent of such prevention, restriction, or interference; provided that the affected Party uses reasonable efforts to avoid or remove the cause of non-performance and resumes performance immediately when the cause is removed.
75. In the event of a delayed Order or other limited supply or unavailability of Product(s) for such reason or any other reason, OTA reserves the right, at its sole discretion and in a manner it deems fair and reasonable under the circumstances, to allocate its related production capacity and/or supply of Product(s) so as to mitigate inconvenience.
76. Unless otherwise agreed in writing by OTA, the Products are sold for use or consumption only within the European Union.
If the Buyer exports the Products, especially outside the European Union, the Buyer assumes full responsibility for determining export licensing requirements and obtaining any necessary export licenses or other authorizations applicable to the Products.
77. If the Products are exported from Portugal by OTA or by the Buyer with OTA’s authorization, the Buyer shall be solely responsible for determining whether any subsequent re-export requires export authorization. Both the Buyer and OTA must comply with applicable export control laws.
78. The Parties acknowledge that OTA’s ability to obtain or maintain applicable export control authorization is not guaranteed and does not constitute a breach of any provision of these Terms, an Order, or any agreement between the Parties.
79. Unless otherwise indicated in writing by OTA, the Buyer may terminate an Order, in whole or in part, for its convenience by immediate written notice to OTA specifying the extent of the termination and the effective date.
80. As soon as reasonably possible after receiving such notice, OTA will cease all work on the affected Order.
81. In the event of such termination, OTA reserves the right, at its discretion, to invoice the Buyer, and the Buyer agrees to pay OTA, a percentage of the price of the terminated Order reflecting the percentage of work performed prior to the effective termination date. This may include costs of all raw materials and work-in-progress related to the Product(s) subject to the affected Order, as well as a reasonable provision for profit on the work completed, provided that such amount shall not exceed the total Order price for the cancelled Order. This provision does not grant the Buyer any right to audit OTA’s records or production process related to any Order or invoiced amount.
82. OTA may terminate an Order or contract, in whole or in part, if the Buyer breaches a material obligation and fails to remedy such breach to OTA’s reasonable satisfaction within ten (10) days of written notice of OTA’s intention to terminate for Buyer’s breach.
83. OTA may terminate or modify these Terms and Conditions applicable to an Order or contract immediately and without prior written notice to the Buyer as a result of the Buyer’s insolvency, filing of a voluntary or involuntary bankruptcy petition by or against the Buyer, the occurrence of an assignment for the benefit of creditors, or a significant change in the ownership or control of the Buyer.
84. The purchase price does not include any use, goods, services, excise, ad valorem, value-added, consumption, or other taxes, fees, levies, or similar charges imposed by any governmental authority on the purchase of Product(s) (“Transfer Taxes”), which OTA is required by law to collect from the Buyer.
85. Transfer Taxes will be separately itemized on OTA’s invoice, and the Buyer shall be responsible for their full payment.
86. OTA does not collect or remit, and the Buyer is not responsible for, any Transfer Taxes for which the Buyer provides a valid tax exemption certificate.
87. Each Party is solely responsible for the declaration and payment of its own net profits, franchise, or similar taxes (“Income Taxes”) arising from or related to transactions governed by these Terms and Conditions, and neither Party assumes any responsibility or obligation for the other Party’s Income Taxes.
88. If any provision of these Terms is, for any reason, held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be deemed severable, and such invalidity, illegality, or unenforceability shall not affect any other provision of these Terms, which shall be enforced in accordance with the intent of this agreement.
89. Any failure or delay by either Party in exercising any right or remedy provided by or related to these Terms, on one or more occasions, shall not constitute a waiver and shall not prohibit such Party from exercising that right or remedy later or from exercising any other right or remedy available.
90. The Parties agree that these Terms shall be governed by the applicable laws of Portugal.
91. Any and all disputes arising between the Parties from these Terms and any Order or agreement shall be resolved in the following order:
a) By good-faith negotiations conducted within 60 days from the request for such negotiations between duly authorized representatives of each Party;
b) As a last resort, if mediation is unsuccessful, through judicial means. Any litigation related to this agreement shall be brought exclusively before the Judicial Court of the District of Porto, with express waiver of any other jurisdiction.
92. Furthermore, at its discretion, OTA may resort to the court of the Buyer’s location.
93. The Buyer agrees to submit to the jurisdiction of the courts where OTA is headquartered in the event of any dispute relating to any aspect of this Agreement.
94. This section shall not prevent either Party from taking other measures if necessary to prevent immediate and irreparable harm to that Party’s interests.
