Sale general conditions

  1. RULES APPLICABLE TO THE CONTRACT

    1. These General Conditions shall govern, except as otherwise specifically agreed in writing, all present and future contracts of sale between INGENIUM SOLAR POWER, S.L. (hereafter “the Seller”) and the purchaser (hereafter “the Buyer”.) General conditions of the Purchaser will not apply, in whole or in part, unless accepted in writing by the Seller. Any possible derogation to these General Conditions will be effective only if agreed upon in writing between the parties.

    2. The acceptance by the Buyer of the Seller’s offer or order confirmation, even when made through a conduct indicating assent, implies the application of these General Conditions to the contract.

    3. All the contracts of sale between the parties as well as these General Conditions are governed by the United Nations Convention on the International Sales of Goods signed in Vienna on 11 April 1980.

    4. Any reference made to trade terms (such as Ex Works, FCA FOB, CIP, etc.) is deemed to be made to the Incoterms published by the International Chamber of Commerce and current at the date of conclusion of the contract of sale.

  2. CHARACTERISTICS OF THE PRODUCTS – TECHNICAL DOCUMENTATION

    1. Non-binding data. Weights, sizes, capacities, prices, performances and other data appearing in catalogues, schedules, circulars, advertisements, illustrations and price lists as well as in other explanatory documents of the Seller, shall be considered as an approximate indication. Such data are not binding.

    2. The Seller reserves the right to change at any time and without notice the technical specifications of the Products (e.g. components) as far as such modifications do not adversely affect their performance.

    3. Seller’s documents. Any drawing, document, technical information or software of the Seller, handed over to the Buyer before or after the signature of the contract remain the exclusive property of the Seller. They neither can be used by the Buyer for a purpose other than the use and maintenance of the Products, nor be copied, reproduced, transmitted or communicated to third parties without the Seller’s written agreement.

    4. The Seller will deliver to the Buyer, together with the Products the respective instructions for use and maintenance.

  3. PRICES AND PAYMENT CONDITIONS

    1. Unless otherwise expressly agreed the price of the Products will be the price indicated in the Seller’s price list in force at the date of acceptance of the order. Unless otherwise agreed the prices are considered to be Ex Works, without packaging.

    2. Payment must be made exclusively to the Seller at the agreed conditions. Payment is deemed to have been effected when the respective sums reach the Seller, without deductions, at his domicile.

    3. In case payment is delayed over the agreed date, the Buyer will pay to the Seller an interest, calculated according to Spanish legislation in force at time of order, as subsequently amended.

    4. Any possible delay in the payment of the price (or delay in payment of a possible advance payment or instalment, in case of payment by instalments) exceeding 30 days from the agreed date of payment will give to the Seller the right to terminate the contract with the faculty of retaining the part of the price already paid (to the extent necessary to cover the damages suffered or the expenses sustained), in addition to the compensation of possible damages.

    5. In case of advance payments covered by a bank guarantee provided by the Seller (e.g. repayment guarantee o advance payment guarantee), the Buyer undertakes not to claim the guarantee, if and to the extent he has no right to obtain the return of the advance payment (e.g. in case of cancellation of the order by the Buyer or in case of contract termination due to the Buyer’s fault).

    6. The Buyer is not entitled to make any deduction from the agreed price (e.g. in case of pretended defects of the Products), nor to delay the payment in case of pretended breaches by the Seller, unless otherwise agreed in writing with the latter.

    7. Should the Seller have reasons to fear that the Buyer cannot or does not intend to pay the Products on the agreed date, he may make delivery dependant on obtaining an appropriate payment guarantee (e.g. surety or bank guarantee). Furthermore the Seller may, in case of delayed payment, unilaterally modify the terms of payment of other supplies and/or suspend their performance until he obtains appropriate payment guarantees.

    8. Should the Buyer refuse the supply of the Products (so called cancellation of order), the Seller will be entitled to cancel the contract of sale and to retain, as penalty, the possible advance payment received, save the right to obtain the reimbursement possible further damages. In case no advance payment has been made, the seller will be entitled to a penalty of 30% of the contract price, save possible further damage.

  4. DELIVERY – PASSING OF RISK – RETENTION OF TITLE

    1. Unless otherwise agreed, the supply of the Products is deemed to be Ex Works and this even when it is agreed that the Seller will take care, in whole or in part, of the shipment.

    2. It is expressly agreed that delivery will therefore occur at all effect at the Seller’s factory when the Goods are loaded on the vehicle of the first carrier.

    3. The risk passes to the Buyer at the latest at the time of delivery of the Products to the first carrier, even where delivery terms are agreed (e.g. FCA, CIF o FOB, etc.) which provide for a different assessment of the transfer of risk.

    4. It is agreed that the delivered Goods remain the exclusive property of the Seller until complete payment is received by the Seller. The Buyer undertakes to refrain, until payment is completed, from any act that may prejudice the rights of the Seller, such as, e.g., reselling, transferring or giving the Products in guarantee, without the previous consent of the Seller.

  5. DELIVERY TERMS

    1. Terms of delivery possibly agreed between the parties are approximate and do not bind the Seller. However, in case of a delay exceeding 60 days for which the Seller is liable, the Buyer may terminate the contract, with respect to the Products the delivery of which is delayed, by giving a 20 days’ notice to the Seller, to be communicated to the latter in writing (also by fax).

    2. The Seller shall not be liable for any delay due to circumstances of force majeure (as defined in art. 8) or due to acts or omissions of the Purchaser (e.g. absence or delay in communicating data which are necessary for performing the contract of sale).

    3. Except in case of fraud or gross negligence of the Seller, any claim for damages arising out of non-delivery or delay in delivery of the Products is expressly excluded.

  6. COMPLAINTS

    1. Any complaints concerning the conditions of packing, quantity, number or outward features of the Products (apparent defects) must be notified to the Seller, by registered letter with return receipt within 8 days from receipt of the Products; failing such notification the Purchaser’s right to claim the above defects will be forfeited. Furthermore, should the Products or their packing appear to be damaged or in case of missing Products, the Buyer must notify the applicable reservations to the carrier, according to the formalities foreseen for the type of transportation used.

    2. Complaints relating to defects which cannot be discovered on the basis of a careful inspection upon receipt (hidden defects) must be notified to the Seller, by registered letter with return receipt, within 8 days from discovery of the defects and in any case not later than twelve months from delivery; failing such notification the Purchaser’s right to claim the above defects will be forfeited.

    3. It is agreed that possible complaints or objections do not entitle the Buyer to return the Products without the prior approval of the Seller, nor to suspend or to delay payment of the Products as well as the payment of any other supplies.

  7. WARRANTY FOR DEFECTS

    1. The Seller warrants the good quality and good manufacture of the Products and agrees, during the warranty period specified hereafter, to repair or replace free of charge the Products or parts of the Products which should appear to be defective due to the bad quality of the materials or defective manufacture, provided this is not due to normal wear and tear, failures caused by the Seller’s unskilfulness or negligence, use in extremely onerous situations or not conforming to the instructions of use and maintenance, or modifications or interventions not authorized by the Seller.

    2. The Seller does not warrant that the Products conform to special specifications or features or that they are suitable for a particular use, unless and to the extent this has been expressly agreed upon in the Contract or in documents referred to in the Contract for such purpose.

    3. Unless otherwise specified for the type of Product or part of Product, the warranty period is 12 months from delivery. With respect to issues not specified in these General Conditions the conditions of warranty accompanying the Product will apply. The warranty for replaced items will cease on the same date on which the warranty of the Product expires.

    4. The Seller is not liable for any defect or non-conformity of the Machine that may arise, even indirectly, from drawings, plans, information, software, materials, components, and whatever else, supplied, indicated or requested by the Buyer or by third parties acting, in whatever capacity, on the latter’s behalf; moreover the Seller is not liable for any defect or non-conformity of materials, software, semi‑finished products, components and of every other product built‑in or not in the Product, supplied, specified or requested by the Buyer or by third parties acting, in whatever capacity, on his behalf.

    5. In case defects are ascertained as well as the Seller’s liability for such defects, the Seller will replace or repair as soon as possible the defective Products. In case repairs or replacements have to be carried out at the location where the Product is installed, the working hours of Seller’s personnel for the repair shall be at Seller’s charge, while travelling hours, possible board and lodging expenses and waiting hours (with specification that the travelling hours and/or waiting hours are rated as working hours) will be at the Buyer’s charge and will be invoiced to the Buyer according to the Seller’s service terms and conditions.

    6. The warranty under this Article is in lieu of any warranty or liability provided for by law, and excludes any other liability of the Seller (both contractual or extra-contractual), which may arise from the Products supplied (e.g. compensation of damages, loss of profit, etc.). Except in case of fraud or gross negligence, the Seller will, in case of defects or non-conformity of the Goods, only have the obligation to replace or repair such Products in compliance with the conditions referred to in this article, any further liability being excluded. In particular, the Buyer is not entitled to any claim for compensation of damage, price reduction, contract termination, suspension of payments and termination of current contracts.

    7. The Seller has no obligation to give assistance under the warranty if the Buyer is not complying with his payment obligations.

    8. No claim can be made against the Seller once the warranty is expired. However, the Seller may supply assistance against payment.

  8. FORCE MAJEURE

    1. Either party shall have the right to suspend performance of his contractual obligations when such performance becomes impossible or unreasonably burdensome because of unforeseen events beyond his control, such as strikes, lock-outs, boycotts, fires, war (either declared or not), civil war, riots, revolutions, requisitions, embargo, energy black-outs, delay in delivery of components or raw materials. Circumstances of the above type occurred before the conclusion of the contract can give right to suspension only if their effect on the performance of the contract could not have been foreseen at the time of conclusion of the contract.

    2. The party wishing to take advantage of this clause must immediately notify in writing to the other party the occurrence and termination of the force majeure circumstances.

    3. Should the suspension due to force majeure last more than 120 days, either party shall have the right to terminate the Contract by a 30 days’ written notice to the counterpart.

  9. JURISDICTION

    1. The competent law courts of Valencia (Spain) shall have exclusive jurisdiction in any action arising out of or in connection with this Contract. How­ever, as an exception to the principle hereabove, the Seller is in any case entitled to bring his action before the competent court of the Buyer’s place of business.