1.1 These general conditions shall be applicable to all sales and supplies made by GAMESA ELECTRIC S.A.U and any of its subsidiaries (hereinafter «the Vendor»), unless expressly and distinctly agreed in the corresponding offer or in the acceptance of the order and which constitute the special conditions thereof. Other conditions that have not been expressly accepted by the Vendor shall have no legal value or effect.
2.1 The intellectual and industrial property of the offer and the product belong to the Vendor, so that its use by the Buyer is exclusively for the purposes of fulfilling the order. Their use by the Buyer for other purposes as well as their total or partial reproduction or assignment of use to third parties, is strictly forbidden, without the prior express consent of the Vendor.
2.2 The designs, proposals and test reports carried out by our services are the property of the Vendor and may only be used by the Buyer to place the order.
3.1 The Vendor, after receiving an order, shall communicate the acceptance of the order in writing to the Buyer in a period of no more than 15 days from receipt. The order shall not be considered firm until the Vendor acknowledges acceptance of the order in writing. Those cases in which this requirement is eliminated due to the periodic nature of the supply and by mutual agreement, shall be excepted.
3.2 The offer and, therefore, the acceptance of the offer, are conditional upon the financial study of the Buyer by the Vendor.
3.3 The Vendor reserves the right to cancel or modify the conditions of the offer made: (a) if it is found that the Buyer has insufficient economic solvency; (b) if the Buyer does not comply with the stipulated payment conditions in any of the established payment milestones.
3.4 The technical information included in the offers, product catalogues, etc. is of an informative and non-binding nature and the Vendor reserves the right to introduce modifications without prior notice. Only a closed specification that forms part of the Buyer’s order and is expressly accepted by the Vendor shall be considered binding.
3.5 Orders for products, equipment or services shall take effect after the Buyer has delivered a down payment on the first payment milestone described in the offer.
3.6 Changes made by the Buyer after the Vendor’s acceptance of the order must always be made in writing and be expressly accepted by the Vendor.
4.1 The prices which appear in offers or pricing rates refer exclusively to the specified products, equipment or services.
4.2 Prices are valid only for the full order of the products, equipment or services specified in the offer and do not include any accessory, product or service not specifically mentioned in the said offer.
4.3 The offered prices must be interpreted for EXWORKS (INCOTERMS 2000) delivery conditions in the manufacturing plant of the supplying company. In the event that a different delivery term is agreed with the Buyer which obliges the Vendor to carry out any kind of transportation, the said transportation shall be invoiced separately.
4.4 The prices are valid during the validity of the offer (one month unless otherwise indicated) or during the validity period of the rate.
4.5 The prices offered have been calculated taking into account the commercial and contractual conditions included in the offer. Any variance in those conditions shall be subject to individual invoicing.
4.6 The prices offered are net. All taxes, rates or liens (including Value Added Tax) to which the order may be subject shall be at the expense and exclusive responsibility of the Buyer and, therefore, shall be charged on the invoices separately.
4.7 Expenses of any kind, arising from modifications requested by the Buyer after the order has been confirmed, shall be invoiced separately.
4.8 Once the Vendor has accepted the order, the prices of the supply are considered fixed and are not subject to revision.
5.1 Unless other conditions are detailed in the offer or acceptance of the order, payments shall be made in the following way:
5.2 If the date of any of the milestone payments is delayed for reasons attributable to the Buyer, the Vendor shall have the right to invoice those milestones on the dates established in the offer for those milestones.
5.3 The Vendor reserves the right to demand a guarantee for 70% of the total amount of the order as payment guarantee.
5.4 In the event the Vendor accepts the deferment of any of the agreed payments, said deferment shall be made through bills of exchange accepted by the Buyer for the amount pending payment, including interest and costs.
5.5 The formalisation of a claim does not give the Buyer the right to any suspension or deduction of the agreed payments.
5.6 In the event that small defects are detected when the product is made available for pickup that represent less than 10% of the value of the order, the Buyer may not withhold payment, as long as the said defects have been remedied prior to the start-up date agreed with the Buyer.
5.7 The product shall continue to be the property of the Vendor until it has been paid in full, to the extent that the said reservation of ownership complies with applicable legislation. The Buyer must, at the Vendor’s request, assist the latter in the adoption of whatever means are necessary to protect the Vendor’s rights to the product in the country in question. The reservation of ownership shall not affect the transfer of risk that will be produced in the terms of Clause 6.2, below.
6.1 Unless otherwise established in the offer, the Vendor shall perform the inspections and tests during production and final inspection before shipping according to the Vendor’s general test protocol. Any additional test requested by the Buyer must be specified in the order, referencing the applicable standard and the place and entity, where appropriate, where the said test will be performed. These additional tests must have the approval of the Vendor and be performed at the expense of the Buyer.
6.2 The Vendor delivers its products with the notice to the Buyer of availability for pickup EXWORKS (INCOTERMS 2000). Partial or anticipated deliveries may be made for all purposes. Once the materials are delivered or a week has elapsed since they were made available for pickup and the Buyer has not collected the product, the Buyer assumes the risks of loss and deterioration.
6.3 If, for reasons outside the Vendor’s control, delivery is delayed for a period longer than one week after being made available for pickup, the Vendor shall be entitled, after notifying the Buyer and at the Vendor’s expense and risk, to transport the materials to a storage company or storage facility in his own plant.
6.4 The Vendor accepts no liability whatsoever for delays due to unforeseen events or force majeure.
6.5 The Vendor accepts no penalty whatsoever for delay in the delivery periods, unless explicitly agreed to and included in the offer or acceptance of the order.
6.6 Delivery periods start from the latest of the following dates:
6.7 The fixed period is understood for the merchandise placed at the Buyer’s disposal on the Vendor’s premises, for shipping or the realisation of tests before the Buyer, provided for in the contract. For the said delivery period to be binding on the Vendor, the Buyer must have completed the payment programme, the Vendor being entitled to halt production in the event of incompliance with payment obligations by the Buyer.
6.8 The stipulated delivery period shall be increased, without the Vendor incurring a delay, by the same amount of time as the delay in payment from the Buyer in the stipulated periods, or for any case of force majeure or physical impossibility of obtaining raw materials, duly demonstrated and communicated in writing.
7.1 The Vendor makes the equipment and materials available to the Buyer with the packaging considered standard by the Vendor. If the Buyer requires another kind of packaging this shall be done at the Buyer’s expense, risk and liability. Under no circumstances shall the return of the packaging be admitted. In accordance with Royal Decree 782\98 of 30 April, Article 18, Law 11\1997 of 24 April, on packaging and waste, it is the Buyer’s responsibility to provide the most appropriate environmental treatment.
7.2 Once the order is received, the Buyer shall verify the contents of the same and notify the Vendor in writing within 48 hours of any anomaly or breakage detected during transport or any defect and/or fault attributable to the Vendor.
7.3 If the order has defects and/or faults attributable to the Vendor, the Vendor shall take steps to remedy them.
8.1 For start-up during the three months counting from the notification to the Buyer of the availability of the equipment at the plant, the Buyer must communicate to the Vendor, with at least 15 natural days’ notice, the planned dates for the said start-up. If the start-up is postponed by the Buyer more than three months after the notification to the Buyer of the availability of the equipment at the plant, the start-up date must be agreed with the Vendor in terms of the availability of the Vendor’s resources on that date.
8.2 Whatsoever modification by the Buyer to the agreed start-up date, communicated at least 15 natural days in advance, implies a new date in terms of the Vendor’s available resources on that date.
8.3 It shall be indispensible for the start-up of the equipment, that the Buyer sends the duly completed verification documentation, at least 10 natural days in advance. Likewise, the Buyer is committed to provide access to the installation to the Vendor on the agreed dates. Otherwise, the Vendor shall not be obliged to comply with the agreed dates.
8.4 If for reasons outside the Vendor’s control the estimated time is prolonged, or more visits than ordinarily necessary are made for the start-up included in the offer, the Buyer shall assume the cost of the said service.
8.5 On completion of the start-up works, one person authorised by the Buyer must be present at the plant to consent to and proceed to sign the start-up certificate. If the Buyer is not represented, the test report must be sent for the Buyer’s acceptance of compliance.
8.6 The supply shall be considered for all purposes to have been received by the Buyer on the earliest of the following dates: (i) of the signing of the start-up certificate (ii) if the Buyer puts the said supply into operation (iii) if a period of 1 year has elapsed since notification that the supply is available for pickup (whichever occurs first).
9.1 The guarantees are described in the Guarantee Certificate of the equipment valid on the date of the order.
10.1 Under no circumstances shall the Vendor accept the return of materials without prior agreement with the Buyer. A period of 15 days from the time when the supply has been received by the Buyer is set for the latter to inform the Vendor of his intention to return materials and the justification for this and to arrange the return procedure with the Vendor, when applicable. In any event, claims from the Buyer to the Vendor must always be made in writing and in a reliable way.
10.2 In the event of a return due to an error in the order or for reasons not attributable to the Vendor, the Vendor reserves the right to not accept the return and may proceed to invoice the full order on the agreed milestones.
10.3 Under no circumstances shall the Vendor admit the return of materials that have been used, fitted on other equipment or installations or subject to disassembly not performed or authorised by the Vendor.
10.4 Pursuant to the provisions of point 10.1 above, special supplies, designed specifically for the order (non-standard supplies for the Vendor) may not be returned under any circumstances.
10.5 Returns or shipments of material to the Vendor’s premises, whether for their payment, replacement or repair, must always be made postage and carriage paid and the risk of loss or deterioration shall not be transferred to the Vendor until effectively delivered.
11.1 Under no circumstances shall the Vendor be liable for any direct and/or consequential damage which may arise as a consequence of the supply; which may include but is not limited to: loss of income, loss of benefits, loss of contracts, loss of use, loss of production, capital cost, loss by interruption of the energy supply or other costs related to the suspension of operations.
11.2 The transportation necessary to transfer the product and/or parts to and from the Vendor in order to remedy the defects for which he is liable shall be made at the Buyer’s expense and risk. The Buyer must follow the instruction given by the Supplier in relation to the said transport.
11.3 The total contractual liability of the Vendor arising from the supply is limited to the value of the supply which originated the claim.
12.1 If the equipment is to be installed outside the Iberian Peninsula, the replacement periods in start-up and repairs under guarantee of the equipment shall be those which are reasonable considering the presence of the Vendor in those countries.
12.2 Similarly, the Buyer shall bear any additional cost which the Vendor incurs for repair, disassembly, assembly and transport if the product is to be located in a place other than the Iberian Peninsula.
13.1 Any discrepancy which may arise as a consequence of an order, shall be submitted to the Judges and Courts of Madrid.
14.1 The Buyer shall be solely responsible for the adoption of whatsoever measures may be necessary for the protection of safety and health at work, so he shall be responsible for informing of the inherent risks of the work centre where the contracted works are carried out, as well as any measures which may have to be applied when an emergency situation arises, in addition to being responsible for the coordination between the different contracts and contractors who may, when applicable, participate in a given project, as well as for the functions of consultation, training and, in general, whatsoever other obligations with respect to safety and hygiene at work may stem from the application of Occupational Risk Prevention Law 31/1995, both in relation to his own workers and to those of his contractors.
14.2 The Vendor is entitled to bring the execution of the services to a standstill under Article 21 of Law 31/95 if he considers that the safety of the personnel is not assured, with the benefit of a reasonable extension of the delivery time when any delay occurs and being compensated by the Buyer for any loss or damage he may suffer, such as lost hours, personnel travelling expenses, living allowances, immobilisation of equipment and tools, etc. with regard to the obligations and responsibilities specified in this clause and those considered in the aforementioned Occupational Risk Prevention Law 31/1995.
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