1. The Seller guarantees all the supplied Products for twenty-four (24) months from the notification that the supply is loaded and available for sending or 24 from the delivery to the first means of transport to the final Buyer, the first to happen, provided the claim has been reported in writing to the Seller within forty-eight (48) hours of them being detected, or of when they should have been detected, and always within the aforementioned deadlines. Likewise, the Buyer must show that the flaws or defects have arisen solely as a direct result of the Seller’s errors or lack of due diligence.
2. This warranty consists only of the repair or replacement (at the option of the Seller) in a reasonable period, of the Products that have been recognised as defective due to material or manufacturing defects. The repairs are understood as made in the factory of the Seller; any dismantling, packaging, charges, transportation, customs, levies etc. originating from the shipment of the defective material to the factory of the Seller shall be borne by the Buyer. The Buyer undertakes to accept the replaced or repaired Products, and under no circumstance shall the Seller be liable to the Buyer for any type of loss or damages above the value of the supplied Product as a result of the initial supply or the delay in the deliveries of the replaced or repaired Products.
3. In no case shall the Seller respond to the Buyer or third parties for any direct, indirect or consequential loss or damage arising out of or relating to the subject matter of this contract, including accidents to persons, damage to property other than the object of the contract or loss of profit. Any commitment and obligations of the Buyer resulting from the guarantees existing between him and his customers that exceed the above indicated and that have not been accepted by the Seller in written and express, will be at the sole expense of the Buyer.
4. The repair or replacement of a defective component shall not change the commencement date of the warranty period for the Products supplied. The Products repaired or replaced shall have a warranty as of their repair or replacement similar to the period that is deducted from the defective or replaced product, up to the periods stipulated in these GCS.
5. As an exception to the warranty described above, when the delivered Products have not been manufactured by the Seller, the Seller shall grant the same warranties to the Buyer that the Seller would have granted to the corresponding manufacturer; however, the Seller does not confer any licence or right of use that would infringe any law or intellectual property or industrial patent of third parties.
6. This warranty does not cover any liability for damages, defects, etc. as a result of:
– Repair and replacement of parts as a result of normal wear and tear.
– Repairs, modifications or alterations in the Products made by any person other than the Seller’s organisation.
– Improper use, replacement, repair, modification, maintenance or alteration, or lack of maintenance in accordance with the Seller’s provided maintenance instructions.
– Lack of lubrication, use or cleaning with the recommended products and regularity indicated by the Seller.
– The Seller shall provide the Buyer with all the necessary information and documents, including the operating manual, to perform its tasks.
– Erroneous and negligent handling, abusive use, defective assembling, variation in the quality of the power supply (voltage, frequency, etc.) changes made without the Seller’s consent, installations made or modified at a later date without following the technical instructions of the product, and, in general, any cause that is not attributable to the Seller.
12.- CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY
1. The intellectual and/or industrial property of the Seller’s trademark, the offer, the information attached to it, the Products and/or the supplies, as well as the items, drawings, software etc. incorporated or related to them, belong to the Seller. Hence, the Buyer shall have no right to use them for purposes other than the completion of the order, or to totally or partially transfer them to third parties, without the prior express consent of the Seller.
2. All Intellectual and Industrial Property Rights arising and/or relating to data and/or documents provided or prepared by the Seller shall continue in the possession of the latter, unless otherwise agreed to the contrary, not granting the Buyer any right or licence with respect to the transmitted information or material.
3. The Buyer shall not allow any trademarks or commercial names to be applied to the Products to be modified, altered, obscured or omitted without the Seller’s prior written consent.
13.- DRAWINGS AND DESIGNS OF THE BUYER
1. Whenever the Buyer specifies in writing that the Products contain a design, data or a specific manufacture method, the Seller shall implement these specifications on the provision that said specifications have been accepted in writing. In other cases, the Seller may modify the Products, provided these modifications are not substantial or such substantial modifications have been agreed to with the Buyer, in which case these modifications do not constitute a breach of contract or mean liability whatsoever for the Seller.
2. The Seller shall not be liable for any breach in the performance or defective execution of Products if it is a result of errors, incompetence or other inaccuracies in the data and/or information, in its broadest sense, supplied by, or on behalf of, the Buyer.
3. The Seller’s inspection of such data/information shall not limit the Buyer’s liability in any way, unless the Seller specifically accepts in writing said liability.
4. The Buyer shall compensate the Seller for all costs and damages of any class that are generated as a result of the manufacture of the Product in accordance with the technical features and information provided by the Buyer, or resulting from infringement of patents, industrial and intellectual property trademarks or models.
14.- TECHNICAL INFORMATION
1. The scope of the supply and the features of the Products shall be defined in the confirmation of the order.
2. The weights, dimensions, capacities, technical specifications, characteristics and settings relating to the Products of the Seller included in catalogues, brochures, prospectuses and technical literature, are for guidance only and are non-binding, except when they have been expressly accepted by the Seller.
15.- USEOF THE PRODUCT BY THE BUYER
1. The Buyer shall be solely liable and keep the Seller indemnified against all liabilities incurred by the Seller in relation to the use of the Products other than in strict accordance with the Seller’s instructions or for the purpose with which the Products were supplied.
2. The Buyer guarantees to the Seller:
• that it shall comply with the legal requirements or requisitions, or authorisations by any governmental department relating to the Products and the applications that the Products shall be subjected to,
• that while the Products are in its possession or under its control, the Buyer shall comply with such requirements,
• that it shall ensure that any other Buyer of the Products shall also comply with these requirements,
• that the Buyer shall indemnify the Seller for any liability arising from or as a result of the breach of such requirements.
16,- ASSIGNMENT OR SUBROGATION
1. The Seller shall be authorised to subcontract the total or partial performance of the Products to third parties, and to transfer all or part of its rights and obligations, and even appoint a third party as a substitute to meet its obligations.
2. The Buyer shall not assign the agreement or its rights or obligations arising therefrom to any third parties without the Seller’s prior written consent.
1. In the event that the Buyer becomes subject to any form of outside bankruptcy, suspension of payments, controlled administration or similar; dissolution, liquidation or transfer of all or part of its assets, the Seller may instigate the termination of the agreements by means of a written notification, without prejudice to its other rights hereunder, such as to recover the resulting damages, along with payment by the Buyer to the Seller of all amounts owed or outstanding that shall be considered as due and payable in relation to this act.
18.- EXPORT LIMITS
1. In the event that any of the Products supplied by the Seller were subject to export control regulations, the Buyer shall refrain from exporting such Products, either directly or indirectly, without the Seller’s prior written authorisation.
2. In this regard the Buyer pledges and undertakes to notify the Seller of any sale that may be made with its Products to a company located in the USA and/or Canada, or when it could reasonably be deemed that the Client could introduce the Product into those markets.
19.- FORCE MAJEURE
1. The Seller shall not be liable for the malfunction or non-execution of any agreement, due to force majeure, in its broadest sense.
2. Force Majeure shall be understood as any circumstance beyond the Seller’s control that temporarily or permanently hinders the execution of any or all of the Seller’s obligations to the Buyer, regardless of whether these circumstances were or were not foreseen at the time of the completion of the order, agreement, contract etc., including but not limited to: governmental actions, dismissal, revocation or cancellation of licences, business closures, forced closure of all or part of the company, war, whether declared or not, fire, transportation problems, accidents, labour riots, shortage of labour, embargoes, temporary or permanent non-delivery of samples, non-rendering of services by third parties regardless of their cause, defects and/or breakdowns in material, machinery, systems and/or software and hardware, absence or lack of material with which to manufacture the Products.
3. Should the Seller be impeded from meeting its contractual obligations on delivery due to situations of force majeure, the Seller may, at its own discretion, extend the delivery period during the period of force majeure or terminate the Agreement, and also demand payment for the partial delivery made, without it being in any way obliged to compensate the Buyer.
1. Any notification related to this contract shall be in writing in Spanish, official language of the contract, and shall take effect twenty-four (24) hours after its posting by certified mail to the registered office of the parties.
21.-LEGISLATION AND COMPETENT COURTS
1. All agreements covered by these GCS, as well as any dispute or difference arising between the parties, are subject to the exclusive jurisdiction and competence of the Courts of Barcelona, and all this without prejudice to the right of the Seller to urge any proceedings in any other competent jurisdiction.
2. The applicable law shall be that of the competent court to hear the dispute between the parties.