General sales conditions

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1. OBJECT

These General Conditions of Sale (hereafter “GCS”) are applicable to any product, spare parts and consumables that GENER TO WIND (hereafter the “Supplier”) supplies to the CUSTOMER (hereafter the “Buyer”), and shall govern all Quotations, Offers, Purchase Orders, Contracts, Agreements and any other sale document between the Parties, and shall prevail over any conflicting clauses contained in the Buyer’s general terms and conditions of purchase. The Buyer’s general terms and conditions of purchase will not be accepted in any circumstances and if contained in another document they shall be deemed to have no effect. These General Conditions of Sale shall come into force upon receipt by the Supplier of the Buyer’s Purchase Order. No modification to these General Conditions shall be considered as accepted until agreed by the Parties in writing.

2. OFFERS AND PURCHASE ORDERS

Standard validity period for Supplier’s offers is one (1) month, unless another period is specified in the offer. The Supplier’s offer shall contain:

• Date of issue.
• Supplier and Buyer address with contact person.
• Offer reference number.
• Spare part or/and consumable description, with its reference number, quantities, EXW unit price, total price and the estimated time of availability (in working days, and EXW conditions).
• Minimum quantities to be ordered, if required by the m
• Type of transport and its price (if the offer is not in EXW conditions).
• Offer validity period.
• Delivery term (Incoterms® 2010).
• Material warranty period.
• Payment term.
• Other conditions specific to a given order.

Once received, the Buyer has one month to decline or accept the offer. If accepted, it shall issue an official Purchase Order that must contain the following details:

• Date of issue.
• Supplier and Buyer address with contact person.
• Supplier offer reference number.
• Buyer Purchase Order reference number.
• Spare part or/and consumable description, with its reference number (the same as mentioned by the Supplier in its offer), quantities, EXW unit price and total price.
• Type of transport and its price (if the offer is not in EXW conditions).

The issuing of a Purchase Order based on the Supplier’s offer or the acceptance thereof in writing implies acceptance by the Buyer of these GCS, which prevail over the Buyer’s general conditions. Any modifications and / or changes to the scope of an accepted Purchase Order must be notified in writing to the Supplier, and to be valid they must be expressly accepted by the latter. The minimum order value for any Purchase Order is 100,-EURO. Any Purchase Order under that amount is subject to an administrative charge of 50 EURO.

3. PRICE AND PAYMENT CONDITIONS

Standard payment terms are thirty (30) days from the date of invoice, unless other conditions are specified in the offer. The price offered is firm, and final for the duration of the validity of the offer. The price for the spare parts and consumables is to be considered unpacked at storage (Supplier’s plant) location, loading operations and expenses not included. The price does not include import duties or taxes, stamp taxes, VAT, sales taxes or any other fee, levy or charge of any kind whatsoever levied in the Buyer’s country, which shall be borne and paid by the Buyer. Payment shall be made by bank transfer within the period indicated in the offer. The Buyer shall bear all fees, expenses or withholdings that may be levied on such payment in order that the Supplier receive the net price in all cases. In the event of a delay in payment, the Buyer shall be liable, as of right, for late interest penalties at a rate of three months EURIBOR plus a spread of 7.00%. Any delay in payment shall entitle the Supplier to suspend or interrupt the fulfilment of its obligations including the Service. In the event of a dispute, the Buyer shall have no right to offset any payment due against presumed expenses borne. The Supplier will be entitled to this payment without the need for formal notification and without prejudice to any other right or remedy that may correspond to it as established in these GCS. The Buyer shall within two (2) business days after delivery give written notice (by email) to the Supplier of the receipt of the materials, in order to issue the corresponding invoice.

4. DELIVERY TERMS

The delivery term is as specified in the Supplier’s offer. Any specific delivery instructions must be given by the Buyer prior to accepting the quoted price so that Supplier has the possibility to adjust its price. The Buyer will assume any cost attributable to changes to the delivery instructions or place of delivery. Shipment and delivery dates/lead times indicated on Quotation are estimated and are not guaranteed unless specified. The Supplier shall not be liable for failure to fill any order or deliver the goods, or for a delay in delivering the goods due to any causes whatsoever beyond the Supplier’s control or in the event of the curtailment of manufacturing or delay in delivery. The Supplier reserves the right to deliver the goods on a pro-rata basis and the Buyer agrees to pay for such partial deliveries. Unless otherwise agreed by the Supplier or indicated in the Supplier’s offer or invoice, the point at which the risk and ownership on the Parts shall pass to the Buyer shall be deemed to be fixed in accordance with the “EXW” delivery Incoterms® 2010. PARTIAL SHIPMENTS: The Supplier reserves the right to make partial shipments. All partial shipments will be separately invoiced and must be paid within the payment terms defined in the Supplier’s offer, without regard to subsequent deliveries. Delay in delivery of any partial shipment shall not relieve Buyer of its obligation to accept and pay for previous and remaining shipments. The Supplier reserves the right to refuse to make further shipments if the Buyer fails to pay for any partial shipments when due. The delivery of the materials will be carried out within the Incoterms 2010 established in the Supplier’s offer. If the Incoterms® 2010 is EXW, the materials shall be collected by the Buyer within a period of no more than one week after receiving the notification from the Supplier. The Buyer shall open the crate(s) and inspect the Supplier’s Parts promptly upon their arrival at the delivery destination and shall within two (2) business days after delivery give written notice to the Supplier of any claim for damages, defects or nonconformity, together with photographic evidence of the damage to the Supplier’s Parts. Failure to make such claim or give such notice within the stated period shall constitute an irrevocable acceptance of the Supplier’s Parts and an admission that such Parts have been received by Buyer in good condition, free of damage and that they fully comply with all the terms and conditions of the offer. Any loss or damage to the Supplier’s Parts that occurs during transportation, storage or otherwise after the Parts have been accepted shall be the sole responsibility of Buyer. As far as nothing to the contrary has been agreed upon in writing, late delivery does not give the Buyer the right to cancel the Purchase Order or to claim late interest or compensation for direct or indirect damages for late delivery.

5. PURCHASE ORDER CANCELLATION

All Purchase Orders received are firm and definitive. Cancellation of the order of a Part will either be charged (totally or partially) or not by the Supplier depending on the Part concerned.

6. RETURNS

The Buyer may not return goods unless written authorisation is received from the Supplier. The Buyer requires a Return Material Authorisation (RMA) number from the Supplier prior to returning any goods. Custom or special order products are not subject to return under any circumstances. In the event the Supplier authorises a return, the Buyer shall be liable for payment of a restocking charge equal to 20% of the value of the returned goods. Electrical items must be returned in the original packaging with the seal unbroken. Any returns accepted will be for credit only, transportation cost to are at the Buyer’s expense, and the Supplier retains, at its sole discretion, the right to determine the value at which the returned goods will be credited. The Supplier reserves the right to dispose of any unauthorised returns of materials without granting credit. Any verbal instruction must be confirmed in writing by the Supplier to be valid. All returned goods must be in saleable condition (un-used) or no credit will be granted by the Supplier.

7. LIMITED LIABILITY

All cases of conditions breach and the relevant consequences as well as all rights and claims on the part of the Buyer, irrespective on what grounds they are based on, are exhaustively covered by these GCS. In particular, any claim not expressly mentioned for damages, reduction of price, termination of or withdrawal from the original offer, are excluded. In no case shall the Buyer be entitled to claim damages other than restitution for costs of remedying defects in the Equipment or as those expressly specified herein. The Supplier shall be liable only for damages directly caused by their own negligence. The Supplier shall under no circumstances be liable for any indirect, immaterial or consequential loss or damage whatsoever, including, but not limited to, loss of production, loss of use, loss of anticipated revenues or profit, or any other financial or economic loss. The Supplier’s total liability, including applicable liquidated damages, if any, for any cause cannot exceed the aggregate amount of ten percent of the EXW Price of the Parts and/or the Services. In addition, it is expressly agreed between the Parties that the Buyer shall use all reasonable efforts and take all reasonable steps in order to mitigate any loss incurred.

8. PROTECTION OF PERSONAL DATA

In compliance with Spanish Organic Law 15/1999 of December 13th on the Protection of Personal Data, personal data provided by the Buyer will become a part of a customer file held by the Supplier, whose purpose is to maintain the business relationship, control and manage sales and the corresponding payment collection. The Supplier will treat said data with the maximum confidentiality, making the commitment to not use them for any purpose other than that for which they have been obtained, as well as storing them, taking the appropriate measures to guarantee their security and prevent their unauthorised alteration, loss, processing, or access. The Supplier will keep professional secrecy with respect to the aforementioned personal data. The Buyer may exercise its rights of access, rectification, cancellation and opposition through notification in writing to GENER TO WIND, Avenida Pío XII, 31, 1º, 31008 Pamplona, Spain.

9. SEVERABILITY

If, for whatever reason, one of these general conditions of sale should be declared void or inapplicable, it will not affect the validity of the other general conditions, and the condition deemed to be void or inapplicable will be replaced with a condition that is as close as possible to the original.

10. WARRANTY

The Supplier warrants that the Parts are free from any malfunction due to material defect, or manufacture or design defect for a period of twenty-four (24) months from shipment date. No other warranty shall be borne by the Supplier. The warranty period will only be guaranteed upon receipt by the Supplier of the delivery note of materials duly signed by the Buyer, otherwise the latter will not have the right to claim said guarantee. If any defect appears during the warranty period, the Buyer will immediately notify the Supplier, sending the claim in writing, documenting the defects found and the material affected. The warranty under these GCS shall constitute the only warranty and sole remedy of the Buyer, and the sole liability of Supplier. The warranty under this paragraph is in lieu of all other warranties, expressed or implied, verbal or written. The warranty does not cover:

• Equipment, services, materials or deliveries not manufactured or rendered by the Supplier.
• Replacement of the parts that suffering wear but no damage.
• Incidental or consequential damages.
• Charges and/or costs derived for product removal from the turbine, packaging, load, transportation, customs, taxes… incurred from shipping the product or its defective parts (if applicable) to the Supplier’s premises and its return and re-installation to the Buyer.
• Parts modified/replaced/repaired without the written consent of the Supplier.
• Warranty limitations:
• Misuse, abusive use, contact with debris, improper installation and/or maintenance and/or handling of the p
• Non-compliance with operating manual and directions for use.
• Defects caused by an external cause, including force majeure and ordinary wear and tear.
• Any product maintained and/or repaired by personnel not properly accredited and/or not expressly authorised by the Supplier.
• Modifications and/or alterations not expressly authorised by the Supplier, including use of spare parts not authorised by the Supplier.
• Lack of access to the p
• More than 52 unplanned interruptions in the electrical network computed in periods of one year that imply or make necessary the shutdown or disconnection of the wind t
• Exposure to conditions outside the range of the environmental specifications, or chemical, electronic or electrical influences which were not considered in the original information given by the Buyer.
• Changes to legislation requiring modifications of the product such that it cannot perform at its warranted performance in accordance with the agreement.

Before any warranty action by the Supplier, the Buyer shall submit to the Supplier clear and detailed information about:

• The location of the wind farm where the product is installed.
• Installation and breakdown dates.
• The wind turbine’s performance records (including alarms) over time.
• Maintenance actions taken on any other critical part, i.e. generator, blades…
• An initial diagnosis of the breakdown.
• Preventive and corrective maintenance reports carried out by authorised personnel.
• Nameplate related data such as the product’s part number and serial number.
• Pictures of the product (connections, interfaces…).

After receipt of the above information, the Supplier commits to analyse the breakdown and decides about the applicability of the warranty, or if needed request more information in order to clarify the root cause of the incident. Warranty claims do not extend the warranty period beyond the original expiry date (of either the new equipment warranty or original component warranty). The warranty is not transferable. The Supplier reserves the right to request all maintenance records and any missing document may affect the acceptance of the warranty. The act of shipping a replacement part in good faith, to support a Buyer’s production, when it is understood that further warranty validation is required, does not validate the warranty claim. If the warranty claim is eventually denied, the Buyer agrees to pay for the Parts and/or Services provided. If the Supplier determines that the failed component must be returned, a Return Material Authorisation (RMA) will be issued. An RMA must be issued before any defective product is returned. If the failed component is not returned within thirty (30) days, the Supplier reserves the right to invoice the Buyer. The Buyer is responsible for properly packaging the failed components for return. The Supplier reserves the right to invoice the Buyer if damages incurred are the result of poor or improper packaging methods. Furthermore, if the damaged Part is sent back to the Supplier under warranty, and the latter ultimately demonstrates the problem is not covered by such warranty, the Buyer shall reimburse the Supplier’s expenses accordingly (freight costs and all expenses relating to the original manufacturer technical verification).

11. FORCE MAJEURE

Any event that may not be foreseen or that being foreseeable cannot be avoided and which impedes or extraordinarily hinders the fulfilment by either Party of its obligations shall be considered a force majeure event. In addition to and without limiting any other provision hereof, which limits or releases the Supplier from liability, the Supplier shall not be responsible for delays, charges, damages, or failure to fulfil any obligation under the business agreement caused by industrial disturbances or disputes, strikes, fire, acts of nature, acts of providence, casualty, embargoes, currency restrictions, labour conflicts or shortages, war, radiation, civil disobedience, import or export restrictions, shortages of materials or labour, failure or delay of suppliers, vendors, and subcontractor restrictions in the use of power, interruption or unavailability of transportation by the usual carriers, or any other cause beyond the Supplier’s reasonable control, even if the Supplier knew, had reason to believe, or was advised of the possibility or probability of any such event.

12. INTELLECTUAL PROPERTY

The copyrights, patents, patent applications and any other intellectual property rights (hereinafter referred to as “the Intellectual Property Rights”) to any documents, components and software embedded in or delivered with the Parts, shall remain the exclusive property of the Supplier. Except where specifically agreed, the foregoing applies without any limitation to the Intellectual Property Rights arising from or used in the execution of an order by the Buyer. The Supplier grants the Buyer the limited non-exclusive, non transferable right to use the Intellectual Property Rights that are necessary to operate the Parts sold by the Supplier. No other rights, express or implied, are granted in connection with such Intellectual Property Rights. Consequently, the Buyer agrees not to manufacture or have any third party(ies) manufacture the Parts that are the object of an Intellectual Property Right. Furthermore, Buyer shall make neither de-compilation of the software supplied by the Supplier, nor copy thereof, nor modification without the express agreement from the Supplier. Documents may only be copied for record or strictly operational purposes. Any and all such copies shall contain the same Ownership and Confidential notices as appear on the original documentation. The Supplier’s name and its logo are protected by trademarks and shall not be used for advertising or other purpose without prior written agreement by the Supplier. Supplier states that, to the best of its knowledge, the Parts do not infringe upon any third part industrial or intellectual property rights (hereafter “Third Party Rights”). The Supplier shall have no obligations hereunder with respect to infringements caused by: i) the Supplier’s compliance with the Buyer’s designs or instructions, ii) use of the Parts in a manner, for purpose, or in a foreign country not agreed to in writing by the Supplier, iii) the assembly, operation or use of the Parts in combination with any product not supplied by the Supplier, iv) alterations to the Parts without the Supplier’s prior written consent. The Buyer shall forthwith indemnify and hold harmless the Supplier from and against any claim whatsoever made by third parties in connection or arising out of infringements or alleged infringements of trade marks, patent rights, inventions and any other such industrial/intellectual property rights, whre such infringements or alleged infringements due to or the consequence of any unauthorised use by the Buyer of the licensed information or licensed trademark or Supplier know-how.

13. CONFIDENCIALITY

For the purposes of the present GCS, the term “Confidential Information” shall mean all information in whatever form, tangible or intangible, including but not limited to know-how, any documentation, spare parts lists, price lists, drawings, software embedded in the equipment, other technical, financial or strategic information, customers or suppliers details, developments or improvements or processes, design and other unpublished information obtained by either Party (the “Receiving Party”) from the other Party (the “Disclosing Party”) related to its activities. All information not generally known outside of the Disclosing Party’s organisation shall be deemed to be Confidential Information. Any and all Confidential Information shall remain the exclusive property of the Disclosing Party and/or its affiliated companies, and the Receiving Party shall not acquire any license or other right of use in relation to any intellectual property of the Disclosing Party or any of its affiliated companies under the business collaboration, unless expressly agreed. Without prior written consent from the Disclosing Party, the Receiving Party shall neither disclose Confidential Information to a third party, nor use it for any purpose other than as required for the implementation of the business collaboration or the exercise of their rights hereunder. The Receiving Party shall take such steps as may be reasonably necessary, and in any case at least the same care as to protect its own Confidential Information, in order to prevent the disclosure of any Confidential Information to others, except to those of its employees, suppliers or subcontractors who are required to know the Confidential Information for the purpose of executing the Project and/or because they are directly responsible for the said tasks. The Receiving Party shall ensure that its aforementioned employees, suppliers or subcontractors comply with said obligations. Except in compliance with applicable laws and regulations or as otherwise agreed upon by the Parties in writing, the Parties agree to keep the content of the business relationship strictly confidential. Any public announcement regarding the agreement shall be agreed upon in writing prior to any release thereof. Notwithstanding the foregoing, the above obligations shall not be binding on the Receiving Party with respect to any Confidential Information which:

• is lawfully and demonstrably known to the Receiving Party prior to the time of disclosure
• is in the public domain or subsequently comes into the public domain, through no fault of the Receiving Party;
• is received lawfully from a third party who has not obtained such Confidential Information directly or indirectly from the Disclosing Party under an obligation to keep it confidential;
• is developed by the Receiving Party wholly independently as a result of its own efforts and without knowledge of the Confidential Information;
• is required to be disclosed by applicable law or governmental regulation or by any competent institution or authority, provided that the Receiving Party notifies the Disclosing Party of the information to be disclosed (and of the circumstances in which the disclosure is required) as early as reasonably possible before such disclosure.

The Receiving Party shall take all reasonable actions to avoid and limit such disclosure. The Parties acknowledge that no representation or warranty, express or implied, is made by the Parties hereto with respect to the truth, accuracy, completeness or reasonableness of Confidential Information exchanged. In the event that the relationship between the Parties is terminated for any reason whatsoever, all such information deemed as “Confidential Information” or concerning prices and costs, that has not at that time entered the public domain, shall be returned to the owner Party immediately by the user Party, subcontractors and/or suppliers. The obligation imposed on each Party or on subcontractors and/or suppliers under this article shall apply during the term of the business relationship and shall survive its expiration or termination for a period of five (5) years.

14. DISPUTES AND APPLICABLE LAW

These GCS and their execution shall be governed by Spanish law and shall be interpreted accordingly. Any dispute arising from the interpretation or execution of these GCS, which cannot be resolved by negotiation between the Parties shall be submitted to arbitration in law by the Chamber of Commerce and Industry of Navarra (Spain), which is entrusted with the administration of the arbitration proceedings and the appointment of the arbitrators, in accordance with the Law on Arbitration dated 23 December 2003. The Parties shall abide by the arbitration decision.[/vc_column_text][/vc_column][/vc_row]