Engineering solutions for industrial automation

GENERAL CONDITIONS OF SALE

1. VALIDITY AND EFFICACY

• 1.1 INGEMAT, S.L. (referred to hereinafter as “INGEMAT”) is a Spanish enterprise based at Zamudio (Bizkaia), Parque Científico y Tecnológico de Bizkaia, Edif. 201 E-48170.
• 1.2 These general conditions (referred to hereinafter as the “General Conditions”), in addition to the offer of INGEMAT comprise the agreement between INGEMAT and the Client (referred to hereinafter as the “Agreement”); and will regulate the execution of each order between INGEMAT and the Client.
• 1.3 The General Conditions are an essential and inseparable part of the offer issued by INGEMAT. As such, INGEMAT´s offer may not be accepted excluding the implementation of the General Conditions, due to the fact that the price and other financial conditions INGEMAT has granted the Client have been based on (i) the validity of these General Conditions; and (ii) the full acceptance of the same by the Client with no reservations.
• 1.4 The completion and submission of a purchase order or the execution of an order by the Client to INGEMAT implies the full and unreserved acceptance of each and every one of the General Conditions and the waiver of any of the similar documents of the Client.
• 1.5 In the event of any discrepancy between these General Conditions and the particular conditions of the offer sent by INGEMAT to the Client, the latter will prevail.
• 1.6 Any amendment to these General Conditions should be conducted in writing and approved by INGEMAT and the Client.

2. PURPOSE OF THE AGREEMENT

• 2.1 The purpose of the Agreement is the sale of the products and services contained in the offer submitted by INGEMAT. The technical characteristics of the products and services are set forth in the offer submitted by INGEMAT and the technical specifications of INGEMAT.

3. EXECUTION OF THE AGREEMENT

• 3.1 The Agreement will be regarded as having been executed at the time the Client accepts the offer submitted by INGEMAT, in accordance with the provisions of these General Conditions.
• 3.2 The offer submitted by INGEMAT will be valid for the time specified in the same, counting from the date specified in the offer itself. INGEMAN may withdraw its offer up to the time of receiving the express confirmation of the Client in relation to the same.
• 3.3 If the Client´s response to the offer made by INGEMAT, intended as an acceptance, contains additions, limitations or other amendments to INGEMAT´s offer, such additions, limitations or other amendments will not bind INGEMAT if they have not been accepted by INGEMAT in an individual, specific and written manner.

4. AMENDMENT OF THE AGREEMENT

• 4.1 The procedure specified in Clause 3 above needs to be followed in order to amend an ongoing Agreement, whereby the Client needs to accept the offer submitted by hereinafter as the “Agreement Amendment”).
• 4.2 INGEMAT may reject any request submitted by the Client to amend an ongoing agreement in the event that the Parties fail to agree on the amendment of the price and the execution period.

5. PRICE

• 5.1 The price of the Agreement is that specified in the offer submitted by INGEMAT. Only the products and services specifically included in the offer submitted by INGEMAT will be regarded as having been included in the price and, consequently, never those listed in the offer drawn up by the Client. Moreover, taxes, expenses, fees and any tax-related charges arising from the execution of the Agreement are not included in the price.
• 5.2 INGEMAT will always have the right to demand of the Client an increase in the price of the Agreement (even when an Agreement Amendment has not been approved) in the event that, at the request of the Client or due to a cause attributable to the Client or suppliers hired by or chosen by the latter:
  • (i) the conditions specified in the offer are amended (among other items, the scope or period of execution defined in the offer is amended), and/or
  • new or different products or services are included or requested, both in quantity and quality, in relation to those defined in the offer submitted by INGEMAT.

6. FORM OF PAYMENT

• 6.1 The price will be paid in accordance with the terms set forth in the offer submitted by INGEMAT.
• 6.2 Any delay by the Client in meeting any of the payment deadlines defined in the offer submitted by INGEMAT (or, where applicable, in the Agreement Amendment) will amount to serious failure to comply with the Agreement by the Client. In such a case, INGEMAT may, at its sole discretion, and with no need for any notification or any other formality, take one or more of the following measures:
  • (i) demand the immediate payment by the Client of the entire price, regardless of the payment deadlines established in the offer submitted by INGEMAT;
  • (ii) charge the client default interest on the amounts owed, at the rate of
  1% per month;
  • (iii) suspend and/or slow down the execution of the Agreement, or file to terminate the Agreement pursuant to Clause 13, claiming any direct or indirect loss and damages caused to INGEMAT by such non-compliance.
• 6.3 The Client may not withhold the price or offset it with any amount owed by INGEMAT in connection with this Agreement (in particular, in relation to any claims filed by the Client) or due to any other legal relationship in which the Client or INGEMAT are involved as parties. In the event that the Client does so, the provisions of Clause 6.2 above will apply.

7. DELIVERY

• 7.1 INGEMAT undertakes to deliver the products to the Client at the location and on the date specified in the offer submitted by INGEMAT. Without prejudice to the foregoing, INGEMAT will retain the ownership of the products delivered to the Client until the Client has paid the full price of the Agreement.
• 7.2 Once the products have been delivered to the Client by INGEMAT, all the risks in relation to the theft, robbery, damage, deterioration and/or impairment of the products will be the exclusive liability of the Client, including cases of unforeseeable circumstances and/or force majeure.

8. SUBCONTRACTING

• 8.1 INGEMAT may fully or partially subcontract the execution of an Agreement.

9. GUARANTEE

• 9.1 The products and services provided by INGEMAT are suitable for use in different industries. However, INGEMAT has no knowledge of the uses the Client has in mind for these products and services and is unable to guarantee the achievement of the expected results of the Client´s production process.
• 9.2 INGEMAT guarantees the Client the achievement of the technical performance and guarantees set forth in the technical specifications provided to the Client by INGEMAT.
• 9.3 The Client specifically declares to be familiar with the products and services provided by INGEMAT, their technical characteristics, uses and operation, as well as the technical specifications of the products manufactured by INGEMAT, and accepts all of the same with no reservations.
• 9.4 The Client will have a period of 1 (one) month as of the date on which the products are delivered or the services are provided, to notify INGEMAT of any defects and/or faults in relation to the same that might be attributable to INGEMAT, reporting the existence of such defects and/or faults immediately, where applicable. Once the 1-month period as of the execution of the services has lapsed without INGEMAT having received written notification from the Client in relation to possible defects and/or faults, the products supplied and/or the services provided by INGEMAT will be regarded as having been accepted by the Client, to full satisfaction. Furthermore, the services will be regarded as having been accepted by the Client in the event that the Client begins using the facility or the equipment involved in the execution of the services.
• 9.5 INGEMAT will grant the Client a guarantee (hidden defects) of two years as of the date on which the products are delivered and/or the services are provided.
• 9.6 “Defective” will be understood as any product and/or service that fails to comply with INGEMAT´s technical specifications. In such a case, INGEMAT will be required to repair or replace, at the choice of INGEMAT, the defective product and/or service in order to ensure it complies with the specifications defined in the offer submitted by INGEMAT.
• 9.7 Once the guarantee periods specified in Clauses 9.4 (visible defects) and 9.5 (hidden defects) have expired, INGEMAT will be definitively free of all liability arising from this Agreement. The Client specifically waives the right to file any claim against INGEMAT once the guarantee periods in question have expired.
• 9.8 The Client, in accordance with the guarantee against defective products and services, should submit a complaint to INGEMAT, via a reliable means of communication, within the guarantee periods defined in Clauses
• 9.4 and 9.5. The complaint submitted by the Client should include a specific list of all the defects based on which it has submitted the complaint to INGEMAT.
• 9.9 The following procedure will apply in the event that the Client reports a defect to INGEMAT within the guarantee periods specified in Clauses 9.4 and 9.5:
  • (i) INGEMAT will have a period of 10 working days in which to respond to the complaint, stating its agreement with or opposition to the complaint submitted by the Client;
  • (ii) in the event that INGEMAT accepts the complaint, it will notify the Client accordingly and proceed to comply with that requested by the Client. In such a case, INGEMAT will be required to repair or replace the defective product and/or service in order to ensure it complies with the technical specifications of INGEMAT; and
  • (iii) INGEMAT failing to reply to the complaint submitted by the Client will mean it has been rejected.
• 9.10 The following items may not be included in the scope of the guarantee addressed in this Clause:
  • (i) defects arising from failure to comply with INGEMAT´s technical specifications or storage instructions;
  • (ii) defects arising from handling, amendments, additions, repairs and/or any other changes effected by the Client to the products supplied by INGEMAT; and/or
  • (iii) any other defects due to reasons not attributable to INGEMAT.

10. LIABILITY OF THE CLIENT

• 10.1 The price, deadline and other conditions offered to the Client by INGEMAT have been based on compliance by the Client with its obligations in relation to the offer submitted by INGEMAT. The Client will be fully liable for all additional costs incurred by INGEMAT in the execution of the Agreement as a result of the Client failing to comply with its obligations, in addition to other suppliers hired or chosen by the Client failing to comply with their obligations affecting INGEMAT´s sphere of operations.
• 10.2 In particular, the Client will be fully liable for all additional costs incurred by INGEMAT arising from the defective execution of the following obligations (including delays):
  • (i) the delivery of information/documentation;
  • (ii) the delivery of industrial equipment and materials;
  • (iii) the delivery of stamped parts, in accordance with the agreed upon amount, data and appropriate quality;
  • (iv) access to the area and necessary means defined in the offer submitted by INGEMAT (for example, water, air, etc.); and
  • (v) the provision of personnel trained in the use and maintenance of the line.

11. LIABILITY OF INGEMAT

• 11.1 The Client guarantees, as an essential part of the Agreement, that the maximum, total and accrued liability of INGEMAT for all items in connection with the execution of an order or purchase order will amount to 100% of the price of the order or purchase order.
• 11.2 The Client will hold INGEMAT, in addition to its employees, agents, representatives, directors and partners, harmless in relation to any liability, obligation, loss, cost, claim, damage, expense or delay in excess of the limits established in this Clause 11.
• 11.3 The parties specifically agree that INGEMAT will under no circumstances whatsoever be liable for:
  • (i) visible or hidden damage or defects in the products reported by the Client to INGEMAT outside the guarantee periods defined in Clauses 9.4 and 9.5;
  • (ii) defects arising from any of the causes defined in Clause 9.10; and/or
  • (iii) indirect or consequential damage, loss of income, production loss or stoppages, capital costs, costs of stoppages, breakdowns or stoppages in the equipment being used in the services or other equipment, deterioration or damage to equipment, systems and buildings belonging to the Client or third parties, occupational accidents, accidents and incidents harming the environment, etc. or any other of a similar nature to all the aforementioned.

12. INTELLECTUAL AND INDUSTRIAL PROPERTY

• 12.1 INGEMAT and the Client specifically declare that all the intellectual and industrial property rights associated with the products delivered by INGEMAT to the Client in connection with this Agreement belong to INGEMAT, without this implying any assignment, licensing, sub-licensing, authorisation or right of use in general by the Client of the intellectual and industrial property rights held by INGEMAT.

13. CAUSES OF EARLY TERMINATION

• 13.1 This Agreement and ongoing orders or purchase orders may be justly terminated by the in bonis party in the event of serious non-compliance by INGEMAT or the Client in relation to any of the obligations arising from this Agreement, unless a specific and separate legal consequence for such non-compliance has been specified in the Agreement.
• 13.2 Moreover, INGEMAT will have the right to justly terminate the Agreement and any ongoing orders in the event of any of the following circumstances:
  • (i) a delay of 90 calendar days in the payment by the Client of any invoice issued by INGEMAT;
  • (ii) the unjustified refusal of the Client to accept an increase in the price of an order or purchase in accordance with one of the assumptions specified in Clause 5.2;
  • (iii) the unjustified refusal of the Client to undertake the liability specified in Clause 10;
  • (iv) the withdrawal of the Client from the Agreement, in accordance with the terms specified in Clause 14; and/or
  • (v) the suspension of the execution of the Agreement for a period of over 90 calendar days due to causes beyond the control of INGEMAT, including the cases of force majeure, as regulated in this Agreement.

14. WITHDRAWAL OF THE CLIENT

• 14.1 The Client will be regarded as having implicitly withdrawn from an agreement or order when (i) it refuses to take charge of the products and services provided by INGEMAT on the delivery date; or (ii) it is clear the Client will refuse the products and services on the delivery date due to a loss of interest in the same or for any other reason.
• 14.2 In the event that the Client withdraws from an order once INGEMAT has commenced execution, the Client should pay INGEMAT the full price specified in the offer submitted by INGEMAT.

15. CONFIDENTIALITY

• 15.1 The parties will treat the information received and obtained as a result of entering into or executing this Agreement with the strictest confidentiality. The obligations arising from this Agreement will remain in force for a period of 3 years once it has been terminated.

16. FORCE MAJEURE

• 16.1 For the purposes of this Agreement, events classified as force majeure will be those it is impossible to foresee, or, when foreseen, were inevitable. Such causes beyond the control of INGEMAT and the Client include, but are not limited to, fires, natural disasters, strikes held by the company´s own employees or hired workers, uprisings and riots, a lack of raw materials on the market to manufacture the products.
• 16.2 Neither INGEMAT nor the Client will be liable for failure to comply with their obligations in relation to the Agreement when such non-compliance has been caused by events classified as force majeure.
• 16.3 In the event that INGEMAT misses a product delivery date due to an event of force majeure, the product delivery date will be put back for a period of time equal to the delay suffered by INGEMAT..

17. NULLITY

• 17.1 The agreements and stipulations of these General Conditions are regarded as independent in themselves, whereby in the event that any provision is declared invalid or null and void, only the Clause in question will be invalidated, and all the other provisions will remain in force.

18. SOLE AGREEMENT

• 18.1 This Agreement replaces any other previous contract between INGEMAT and the Client, both oral and written, in relation to the subject matter of this Agreement; any documentation INGEMAT and the Client have exchanged prior to the execution of this Agreement (including, but not limited to, INGEMAT´s offers and INGEMAT´s technical specifications); as well as the Client´s General Conditions of Purchase (if they exist) or any other documentation, to which INGEMAT will not be subject.

19. ASSIGNMENT

• 19.1 The Client may not assign its contractual position or any of its rights and obligations within the scope of this Agreement without the prior written consent of INGEMAT.

20. PROTECTION OF DATA

• The personal data of the physical entities involved in the signing, management, and execution of the Agreement in the name of and representing and/or on behalf of the Client will be treated under the responsibility of INGEMAT, for the execution, development, maintenance and monitoring of the legal relationship between the parties and compliance with their applicable legal obligations.
• The owner of the personal data may exercise his/her rights of access, amendment, opposition, deletion, portability, limited processing, against INGEMAT, by writing to the business address of INGEMAT specified in the header of these General Conditions.
• The legitimate reasons for processing the data in question are: (i) the execution and monitoring of the contractual relationship between INGEMAT and the Client; and (ii) compliance with the legal obligations to which INGEMAT is subject.
• This personal data will be processed throughout the period in which the Agreement is valid and for a maximum period of 6 (six) years after the termination of the Agreement, with the sole purpose of compliance with any applicable law. Furthermore, the Client´s legal representative is hereby informed that he/she may submit any complaint or request in relation to the protection of personal data to the corresponding Data Protection Authority.
   

21. COMMUNICATIONS

• 21.1 Without prejudice to the special provisions of these General Conditions, communications between INGEMAT and the Client in connection with this Agreement may be conducted via ordinary post or electronic mail.
• 21.2 For the purposes of communications, INGEMAT has provided the address specified in the header of these General Conditions, and the following electronic mail address: eolaortua@ingemat.com In turn, the Client´s address will be regarded as that or those the Client provides in the corresponding purchase request or order.
• 21.3 INGEMAT and the Client may change their communication address subject to notifying the other party with sufficient notice beforehand, using appropriate means and in the manner specified in this Clause.

22. LAW AND JURISDICTION

• 22.1 Both the interpretation and execution of this Agreement will be governed by Spanish law.
  The implementation of the United Nations Convention on Contracts for the International Purchase and Sale of Goods (Vienna Convention) is excluded.
• 22.2 INGEMAT and the Client hereby elect the courts and tribunals of the city of Bilbao to settle any issue or conflict that might arise from this Agreement, with the express waiver of any other, however privileged it may be.