Terms and Conditions
GENERAL TERMS AND CONDITIONS OF SALE
OFFER, CONFIRMATION OR AGREEMENT
Unless and to the extent that Nechi Group (“Supplier”) expressly provides otherwise, these general terms and conditions of sale of Supplier (“Terms and Conditions”) are applicable to and form an integral part of all quotations and offers made by Supplier, all acceptances, acknowledgements or confirmations by Supplier of any orders from Purchaser and any other agreements (the “Agreements”) for the sale by Supplier and the purchase by Purchaser of goods and services (the “Products”).
Supplier shall disregard and expressly excludes the application of those terms and conditions contained in any document issued by Purchaser prior to or after the drafting by Supplier of a document setting forth or referring to these Terms and Conditions and such terms shall not apply in any way to sales made to Purchaser by Supplier and shall not bind Supplier in any way.
Supplier’s offers shall be subject to acceptance for such period as Supplier may determine therein and, if no such period is specified, for thirty (30) days from the date of the offer, but Supplier may withdraw or revoke any offer at any time prior to receipt of Buyer’s acceptance thereof.
2. PRICING
The prices shall be understood to be the “ex works prices” excluding packaging, transport, insurance and any other or additional costs (storage, inspections by third parties, etc.).
The total price payable by the Customer under this Agreement shall be deemed to be the “Contract Price”.
Prices do not include indirect taxes or similar fees or contributions (e.g.: property taxes, licenses, business taxes, taxes on consumption or use of goods, value added tax) arising in connection with this Contract.
Customer agrees to pay or reimburse Supplier for any taxes payable by Supplier or any of its subcontractors.
3. PAYMENT
(a) Unless Supplier and Purchaser agree otherwise in writing, Supplier may invoice Purchaser for the price of the Products at the time of acceptance of Purchaser’s order.
If partial deliveries are made, each partial delivery may be invoiced separately and shall be due and payable when due.
No cash discounts will be given unless otherwise stated in writing by Supplier.
(b) In the event of Buyer’s failure to pay any required consideration or surcharge or if any other default occurs on its part, Supplier shall have the right to refuse to perform and/or deliver any Products until any outstanding payments have been settled and may suspend, defer or cancel any credit, delivery or other action to be taken by it.
Such rights shall be in addition to and not in lieu of other rights and remedies available under a Contract or at law.
4. DELIVERY AND QUANTITIES
(a) Unless otherwise agreed in writing, the Products shall be delivered at such place as Supplier shall determine.
Any delivery dates Supplier specifies or accepts shall be approximate and Supplier shall not be liable or be deemed to be in default of its obligations to Purchaser if delivery is made within a reasonable time prior to or after the scheduled delivery date.
Supplier agrees to use its best business judgment to meet the delivery dates quoted or accepted provided that Purchaser provides Purchaser with all necessary ordering and delivery information sufficiently in advance.
(b) Buyer shall notify Supplier in writing of any non-delivery and shall provide a thirty (30) day period within which to cure such non-delivery.
If Supplier fails to deliver within such thirty (30) day period, Purchaser’s sole and exclusive remedy shall be to cancel the affected undelivered portions of the Contract.
(c) Title to the Products shall pass to Buyer upon payment in full of the purchase price for the Products.
Risk of loss of the Products shall pass to Buyer upon delivery of the Products by Supplier.
(d) If Buyer fails to take delivery of the Products ordered, Supplier may consign them at Buyer’s expense.
(e) In the event that Supplier’s production is restricted for any reason, Supplier shall have the right to allocate available production and Products among its customers at its sole discretion and, accordingly, may sell or deliver to Buyer less Products than stated in the Agreement, if any.
5. FORCE MAJEURE
Supplier shall not be liable for any failure or delay where:
(i) such failure or delay results from interruptions in the manufacturing process of the Product; or.
(ii) such failure or delay is the result of Force Majeure as such term is defined below or by law.
In the event of one of the above breaches, the relevant part(s) of the Contract shall be suspended for the period during which such breach persists without Supplier being liable to Purchaser for any damages arising therefrom.
The term “Force Majeure” shall mean, and such term shall include, any circumstances or events beyond Supplier’s reasonable control – whether or not foreseeable at the time of signing the Contract – as a result of which Supplier cannot reasonably be required to perform its obligations, including situations of force majeure and/or default by one of Supplier’s suppliers.
In the event that the Force Majeure situation continues for a period of three (3) consecutive months (or in the event that Supplier reasonably expects the delay to be three (3) consecutive months), Supplier may cancel all or part of the Contract without any liability to Purchaser.
6. RIGHTS OVER SOFTWARE, DOCUMENTATION AND INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
Notwithstanding anything to the contrary herein, the sale of a Product by Supplier implies the grant to Buyer of a non-exclusive, non-transferable, limited license under the intellectual property rights of Supplier and/or its related companies in the territory to use and resell the Products as sold by Supplier to Buyer.
To the extent that software and/or documentation is incorporated in or delivered with a Product, the sale of such Product shall not convey to Purchaser any ownership of or title to such software and/or documentation, but, subject as set forth herein, shall only convey to Purchaser a non-exclusive, non-transferable license under Supplier’s intellectual property rights to use such software and/or documentation in conjunction with the Products as incorporated in or delivered with the Products, shall only be a grant to Purchaser of a non-exclusive, non-transferable license under Supplier’s intellectual property rights to use such software and/or documentation in conjunction with the Products as incorporated in or delivered with the Products and as supplied by Supplier in the Territory.
Buyer shall not:
(a) modify, adapt, alter, translate or create derivative works from any software located in or provided by Supplier together with the Products;
(b) assign, sublicense, lease, rent, lease, loan, transmit, communicate or otherwise make such software available to any third party;
(c) merge or incorporate such software into other software; or
(d) reverse assemble, decompile, decompile, decompile or otherwise attempt to derive the source code of such software without written authorization from Supplier unless expressly permitted by applicable law.
Purchaser shall reproduce, without modification or change, any copyright notices of Supplier and/or its related companies or its suppliers with respect to any software or documentation supplied by Supplier.
Third party license terms may apply.
7. LIMITATION OF WARRANTY AND DISCLAIMER CLAUSE
(a) Supplier warrants that, under normal use in accordance with the applicable user manual, the Products (excluding any software that Supplier has not incorporated into the Products) will, at the time of delivery to Purchaser and for a period of twelve (12) months (or such other period as the parties may agree in writing), be free from defects in material or workmanship and will substantially conform to Supplier’s specifications for such Product or, if applicable, to such other specifications as Supplier may agree in writing.
Supplier’s sole and exclusive obligation, and Purchaser’s sole and exclusive right, with respect to claims arising under this warranty shall be limited, at Supplier’s option, to replacing or substituting a defective or nonconforming Product or making an appropriate credit to the value of the purchase price thereof.
Supplier shall have a reasonable time to repair, replace or credit.
Defective or nonconforming Products shall become Supplier’s property as soon as they have been replaced or credited.
(b) Purchaser may only ship Products returned under warranty to Supplier’s designated facility in accordance with Supplier’s return material authorization policy in effect at such time.
For Products returned which are not found to be defective or nonconforming, Buyer shall be responsible, together with transportation charges, for testing and handling costs incurred.
(c) Notwithstanding the foregoing, Supplier shall have no obligation under the warranty if the alleged defect or nonconformity is found to have occurred as a result of environmental or endurance testing, improper use, use other than as provided in the user manual, neglect, improper installation or accident, or as a result of improper repair, alteration, modification, storage, transportation or handling.
(d) The express warranty set forth above shall apply directly to Buyer and not to Buyer’s customers, agents or representatives and is in lieu of all other warranties, express or implied, including, without limitation, implied warranties of fitness for a particular purpose, merchantability and non-infringement of intellectual property rights.
Supplier specifically excludes all other warranties.
8. INDEMNIFICATION IN THE FIELD OF INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
(a) Supplier shall have no obligation or liability to Purchaser under subsection (a)(1) if
(i) it is not promptly notified of such claim;
(ii) it is not given the exclusive right to control and direct the investigation, preparation, defense and settlement of such claim, including the decision as to the choice of counsel; and
(iii) Buyer does not provide you with its full and reasonable support and cooperation in such investigation, preparation, defense or settlement; or (2) if the claim is brought more than three (3) years after the date of delivery of the Product.
(b) Subject to the exclusions and limitations set forth in clause 9 of these Terms and Conditions, the foregoing paragraphs set forth the entire liability and obligations of Supplier to Buyer and constitute Buyer’s sole remedy in respect of any actual or alleged infringement of any intellectual property rights or other exclusive rights of any kind.
9. LIMITATION OF LIABILITY CLAUSE
(a) SUPPLIER SHALL NOT BE LIABLE FOR LOST PROFITS, LOSS OF SAVINGS, LOSS OF REPUTATION, LOSS OF TRADE FUNDS, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE CONTRACT OR THE SALE OF ANY PRODUCTS OR SERVICES BY SUPPLIER OR THEIR USE, WHETHER SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR OTHER LEGAL CONCEPT – EVEN IF THE SUPPLIER HAS BEEN INFORMED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL AGGREGATE LIABILITY OF SUPPLIER TO BUYER UNDER ANY CONTRACT SHALL NOT EXCEED THE AMOUNT OF TEN PERCENT (10%) OF THE VALUE OF THE RELEVANT CONTRACT.
(b) Any claim for liquidated damages by Buyer must be brought within ninety (90) days from the date of the occurrence of the event giving rise to such claim and any suit arising out of such claim must be brought within one (1) year from the date of the claim.
Any claim filed or brought in disregard of the preceding sentence shall be null and void.
(c) The limitations and exclusions set forth in this Clause 9 shall only apply to the extent permitted by applicable mandatory law.
10. CONFIDENTIALITY
The Purchaser undertakes not to disclose to third parties documents, data, know-how or any other information it has received from the Supplier (hereinafter referred to as “Confidential Information”) without the prior written consent of the Supplier, and to use such Confidential Information exclusively for the purposes provided for in Clause 6.
The Client undertakes to make the Confidential Information available only to employees of the Client who need such Confidential Information and who are subject to the obligation of confidentiality.
Furthermore, the Client is obliged to protect the Confidential Information at least as carefully as it handles similar confidential information of its own.
The consent of the Supplier to the disclosure of the Confidential Information to third parties shall only be valid on condition that the Customer imposes on the third party the confidentiality obligation set forth in this Agreement and that the Customer indemnifies and holds the Supplier harmless in the event of a breach of the confidentiality obligation by such third party.
This confidentiality obligation shall not apply to Confidential Information that:
(a) is or becomes, through no fault of the Customer, known to the public domain,
(b) is disclosed to the Customer, in good faith, by a third party, who is obligated to such disclosure,
(c) has been independently developed by the Client, without the need for the Confidential Information;
(d) was known to the Customer prior to disclosure by the Supplier, or
(e) is expressly required by law or administrative order to be disclosed (in which case, the Client shall be required to duly and timely notify the Supplier of such requirement).
Customer’s obligation of confidentiality shall survive the expiration or termination date of this Agreement.
11. EXPORT / IMPORT CONTROLS
If delivery of the Products under the Contract is conditional upon the grant of an export or import license by an administrative authority under applicable laws or regulations, or is otherwise restricted or prohibited by export or import control laws or regulations, Supplier may suspend its obligations and Purchaser’s rights in connection with such delivery until such license is granted or during the term of such restriction and/or prohibition respectively, and Supplier shall even be entitled to terminate the Contract without incurring any liability to Purchaser.
In addition, if a declaration of last destination is required, Supplier shall promptly inform Purchaser thereof and Purchaser shall provide such document upon first written request; if an import license is required, Purchaser shall promptly inform Supplier thereof and shall provide such document as soon as it becomes available.
By accepting Supplier’s offer, entering into any Contract and/or taking delivery of the Products, Buyer agrees not to use the Products and/or related documentation in violation of any export or import control laws and regulations.
12. ASSIGNMENT AND COMPENSATION
Buyer may not assign any rights or obligations under the Contract without the prior written consent of Supplier.
Buyer shall have no right to withhold or reduce payments or to set off any present or future claim of Buyer against Supplier or any of its related companies against any payments due for Products sold under the Contract or under any other contract, and agrees to pay the amounts hereunder regardless of any set-off asserted by or on behalf of Buyer.
13. APPLICABLE LAW AND COMPETENT FORUM
All offers, confirmations and Contracts shall be governed by and construed in accordance with the laws of Spain.
Buyer and Supplier shall first resolve all disputes arising out of or relating to any Contract by consultation and negotiation in good faith in a spirit of mutual cooperation.
Any disputes that cannot be settled amicably shall be submitted to the exclusive jurisdiction of the courts of Barcelona, Spain, although Supplier may always bring an action or proceeding against Purchaser in any other competent jurisdiction.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Contract.
Nothing in this Clause 13 shall be construed as limiting either Supplier’s or Buyer’s rights under applicable law to seek injunctive or equitable relief or to bring any action to protect its ability to proceed against the other party.
14. DEFAULT AND TERMINATION
Without prejudice to any rights or remedies available to Supplier under the Contract or at law, Supplier may terminate with immediate effect the Contract or any part thereof by notice in writing to Purchaser without incurring any liability if:
(a) the Buyer is in breach or default of any provision of the Contract; or
(b) insolvency or bankruptcy (including restructuring), liquidation or dissolution proceedings are instituted against Buyer, whether or not brought or instituted by Buyer, and whether voluntary or compulsory, a receiver or trustee is appointed in respect of Buyer, or an assignment is made for the benefit of Buyer’s creditors.
Upon the occurrence of any of the above events, all payments due and payable by Buyer under the Contract shall become immediately due and payable.
In the event of cancellation, termination or expiration of a Contract, the terms and conditions that are to remain in effect after such cancellation, termination or expiration shall remain in effect.
15. MISCELLANEOUS
(a) In the event that any provision of these Terms and Conditions shall be held invalid or unenforceable by any court of competent jurisdiction or pursuant to any future legislative or administrative action, such holding or action shall not affect the validity or enforceability of the remaining provisions hereof.
In the event that any provision of these Terms and Conditions is finally determined to be unlawful or unenforceable, such provision shall be deemed severed from these Terms and Conditions, all other provisions shall remain in full force and effect and, in substitution for the provision found to be unlawful or unenforceable, a provision of similar scope reflecting the original intent of the provision shall be included to the extent permitted by applicable law.
(b) The failure of any party to exercise or delay in exercising any right or remedy under the Agreement shall not constitute a waiver thereof and the single or partial exercise of any right or remedy under the Agreement shall not preclude any separate or future exercise thereof or the exercise of any other right or remedy under the Agreement, any other document relating thereto or the law.