1.SCOPE OF APPLICATION AND COMING INTO EFFECT
With the execution of the order by the Customer and its acceptance by OJMAR US LLC. (hereinafter, OJMAR; both hereinafter, the Parties), the Customer from this moment accepts and consents to these general terms and conditions, which he/she declares to know and which have been available since the execution of the order. Likewise, the Parties consent to the particular terms and conditions which may be agreed between them. The Customer declares that it is not an end user of the products sold by OJMAR but rather a trading company or natural person that operates in trade as an individual entrepreneur, reason for which under no circumstance will the specific regulation on consumers, users, general contracting conditions, or other specific regulation for these collectives, be applied. All relationship between the Parties will be governed by these conditions, even in the event that in the communications between them, these conditions are not expressly included, provided they have been informed and made available to the Customer. Any agreement between theParties that contradicts, partially or totally, the present conditions will require the express, written mention of the Parties, and which of these conditions is without effect must be expressly indicated.
2. FORMALIZATION OF THE TRANSACTION, CONDITIONS, PRICES AND PAYMENT
Any order made to OJMAR will not be binding as long as the express acceptance of OJMAR in all its terms has not been stated. If OJMAR makes any proposal for modification, total or partial, to the order made by theCustomer, neither the Customer’s initial order nor OJMAR’s proposal will be binding for this while an acceptance or express agreement of both Parties does not exist on all the terms of the agreement. In the same way, any offer made by OJMAR, on its own initiative or requested by the Customer, will not be binding for OJMAR while there has been no acceptance and express request for the order by theCustomer. The products sold will be delivered and provided to the Customer under the negotiated conditions which are included in the estimate or in the acceptance of the order made by OJMAR. The prices offered by OJMAR do not include any other aspect that is not that strictly referred to the price of the product, except when the inclusion of other items is expressly indicated in estimate. All the conditions offered by OJMAR will be valid for thirty days from the date of the communication of the offer to the Customer. When this time has passed, and even in the event of the acceptance of the offer by theCustomer, OJMAR reserves the right to accept it in its initial terms or modify it in aspects such as the increase in prices due to circumstantial reasons like the increase in the cost of raw materials, labor contingencies or any others. For orders with a completion deadline requiring more than five months,OJMAR likewise reserves the power to increase the price of the products due to the same circumstantial reasons and increase in the cost of raw materials indicated before. The price increase will be effected in proportion to the cost increase suffered by OJMAR due to the afore mentioned circumstances. The payment conditions of the goods are those reflected in the offers and invoices. The delay in the compliance of the performance of the obligation to payment on behalf on the Customer in the terms indicated empowers OJMAR to apply a delay interest of 10% regarding the debited amount, without affecting any other action to which s/he might have the right to, due to consequential damage caused by non-payment.
3.DISPATCH AND DELIVERY OF THE GOODS
The dispatch of the goods, the risk transfer and the transport insurance will be in accordance with the conditions agreed to by the Parties. From the moment and the place of making the goods available to the Customer as per the agreement, OJMAR will not be responsible for any damage that the goods may suffer and/or the Customer directly or indirectly due to its non-collection. Any contingency regarding the transport of the goods when it is covered byOJMAR, including, amongst others, loss or damage, must be reported to OJMAR in the period of 24hours since the risk transfer to the Customer. OJMAR will not be obliged to be responsible of any claim made for these reasons after the end of this period. The delivery time of the goods indicated by OJMAR in its estimate will begin to count from the day in which the Customer’s acceptance of the estimate is made known. If once the acceptance has been made the Customer should make any change or addition to the order, the delivery time for the first order will start to count again from the express acceptance between the Parties of the changes made. OJMAR will not be responsible for any delay in the delivery due to circumstances out of one’s control or other unforeseeable circumstances when the agreement is made, including strikes or labor incidents, which will be notified to the Customer. In the event that these circumstances were to postpone the dispatch of the goods more than six weeks with respect to the initially foreseen period, the Customer will be empowered to resolve the operation without the right to make another claim or action against OJMAR for this reason. OJMAR reserves the right to suspend the delivery of the goods or to bring production to a halt if reasonable circumstances exist that allow it to foresee that the Customer will not fulfill the obligation to pay for the goods in the agreed conditions.Any damage that the Customer may observe in the goods must be notified to OJMAR in the maximum period of 3 days from the period within which the product is available to the Customer. The notification must be made in writing, detailing the goods affected and the defects suffered. The Customer will be obliged to send OJMAR the amount of samples of the goods requested as well as allowing, when appropriate, OJMAR access to the goods in the Customer’s installations or where the goods may be situated. In the event of not sending the goods or not allowing inspection, OJMAR will consider that no defect exists and will accept no responsibility. The costs incurred due to OJMAR’s inspection of the goods indicated by the Customer as faulty, such as transport expenses, postal charges or others, will be the responsibility of OJMAR only if the fault in the manufacture of the product is proven. On the contrary,OJMAR can pass on these costs to the Customer. The products will be sent by the Customer prepaid, and will not be accepted if this requirement is not met. If the product is found to be faulty, OJMAR will credit the Customer the shipping expenses to its factory/warehouse/office and will repair or replace the faulty product at no additional charge to the Customer. Upon request, OJMAR will ship the faulty product back to the Customer and the Customer shall be responsible for transport costs. The domain of the products sold by OJMAR will not be transferred to the Customer until it has verified the total payment of the products in the conditions agreed upon by the Parties. Notwithstanding, the Customer will be responsible for the state of the goods from the moment in which the Parties agree that a risk transfer has occurred in the transaction. Until the complete payment of the good(s) has been made and from the moment in which the Customer breaches the agreed payment commitment, OJMAR will be entitled to require the Customer to return the goods at the expense of the Customer. While the Customer has not paid the total cost and therefore while OJMAR reserves the domain, the Customer will be obliged to communicate to anybody it transfers the possession of the goods to, whether it be independently or together with or as a part of other elements, the domain reservation existing in favor of OJMAR. If for any reason OJMAR is not able to obtain possession of the goods it is entitled to, the Client will be penalized 20% of the value of the goods, as well as the intrinsic value of the goods and other damages it is entitled to receive.
4.SAMPLES AND PRODUCT GUARANTEE
The designs, photographs, drawings, structure and specifications contained in communications, catalogs, lists, web site and any type of medium represent an approximation to the reality of the products offered. All the products, their specifications and qualities contained in these mediums provide information. The products requested by the Customer may be altered unilaterally by OJMAR for technical reasons in aspects such as structure, size or aesthetic appearance, without this affecting the conditions and basic functions of the goods. OJMAR will only be obliged to compensate the Customer for the direct damages suffered due to faults in the product. Under no circumstance will OJMAR be liable to third parties, neither directly nor indirectly, for any claim made to OJMAR or to the Customer. The Customer will pay the costs OJMAR were to suffer due to any claim made by third parties with whom the Customer has or not any type of contractual relationship and who have not been contracted directly by OJMAR. OJMAR guarantees the correct working order of its products in normal usage conditions for a period of 3 years (except for padlocks, wristbands, software, and Mifare 1K proximity cards, for which the guarantee will be 1 year). Correct working order means that the mechanism, usage, functionality and purpose of OJMAR’s products do not suffer deterioration, wear, breakages, damage or any other situation under normal conditions. Normal use conditions mean that the lock is used for the purpose it is designed for. Normal use conditions mean the installation of the lock in a standard environment, not subject to significant variations in temperature, humidity, chemical agents or special products. Normal use conditions also mean the non-use of violent means, by brute force or the use of mechanical, electronic or any other type of appliances, either illicitly or not, that are aimed at deliberately altering the correct working order of the products. If OJMAR’s products were to suffer any type of alteration impeding their correct working order due to the non-existence of the afore mentioned normal use conditions or any other that, although not mentioned, would suppose an alteration of the standard situation and use, OJMAR will not be liable in any event for the damages occasioned to the Customer or to third parties. Any manipulation, transformation or modification that the Customer or third party were to make on the products for any reason, including an attempted supposed improvement, will exonerate OJMAR from any liability that could arise with the product, as long as OJMAR had not expressly consented to the modification. Any defect that the Customer were to observe in the goods must be notified to OJMAR in the maximum period of 3 days since learning of the incident and under the same conditions as those indicated above for the event of damages during the transport of the goods.
In the event that goods are to be returned to OJMAR for any reason that is not deemed to be the responsibility of OJMAR, including but not limited to, change of scope, order of excess goods, and/or exchange for alternate goods; returned goods shall be inspected by OJMAR and must be found in New/Like New condition as deemed by OJMAR to be accepted. Upon acceptance of returned goods, OJMAR will charge a restocking fee in the amount of 20% of the original order and credit the remaining amount of the order. Customer shall be responsible for the cost of shipping returned goods to OJMAR. If returned goods are deemed unacceptable by OJMAR, goods may be returned to Customer upon request at Customer’s expense.
6.INDUSTRIAL AND INTELLECTUAL COPYRIGHT
All models, designs, drawings, sketches and prototypes of OJMAR’s products are subject to industrial and intellectual copyright regulations. Any use made of any of them will be exclusively for the commercial and industrial purpose of the transaction. The use of this material for promotional, sampling or testing purposes must have the express consent of OJMAR who will determine the mode and form in which this is carried out, the mention of OJMAR’s name and the origin of the products.
7.APPLICABLE LAW, PLACE OF PERFORMANCE OF AN OBLIGATION AND COMPETENT JURISDICTION
Any controversy or litigation that may arise due to the compliance, execution or interpretation of any contractual relationship maintained between the Parties will be in accordance with United States law, with the exclusion of any other comparative legal body that may be applicable. The state of California,United States is deemed to be the place of performance of the obligation to deliver, dispatch and pay the goods. Any action, claim, exercise of declarative actions or any procedure before any authority or jurisdiction, that is related to a transaction made with OJMAR will be the exclusive competence of the courts and tribunals of the state of California and the United States.