Conditions
- These general conditions of sale apply to all goods and services (the products) supplied by FENWICK IBERICA S.A. to any buyer (customer), in Spain or any other country. These conditions prevail over any other conditions except prior formal agreement issued by FENWICK IBERICA S.A. The fact of sending an order implies full adherence, without reservation, to the General Conditions of Sale, to the exclusion of any other document.
- Orders are firm only after written confirmation. Acceptance by FENWICK IBERICA S.A. may also result from the shipment of the products. Consequently, the General Conditions of Sale are incorporated into all contracts between FENWICK IBERICA S.A. and the customer, in all their forms, as well as orders accepted by FENWICK IBERICA S.A. The modification or cancellation of an ongoing contract shall be requested in writing. FENWICK IBERICA S.A. reserves the right to accept or refuse this request. In case of acceptance, it may represent a delay in delivery time or a price increase. In case of cancellation of an order, payments on account made to FENWICK IBERICA S.A. will not be refunded and the customer may be asked to pay compensation to FENWICK IBERICA S.A., the amount of which will depend on the type of product concerned.
- FENWICK IBERICA S.A. does not guarantee the delivery time. However, the customer may request the cancellation of the order if the delay in delivery is more than 4 months from the estimated date, provided it is not a case of force majeure, as indicated in Article 9, or if no response to a formal request, made by registered letter, is received within 15 days. FENWICK IBERICA S.A. reserves the right to make partial shipments, with the corresponding invoicing. In this case, each partial shipment will be considered as a separate contract. The customer may not rely on the fact that the entire order has not been shipped to change or refuse payment corresponding to the partial shipment. Unless otherwise agreed, delivery is deemed to be made to the seller's address (ex-works, according to Incoterm 2010). It is the customer's responsibility to insure the cost and risks of transporting the goods after delivery.
- Upon receipt, the customer must verify that the products delivered are correct. The customer has a period of 8 days to inspect them and report any possible discrepancies. The customer may not make any claim if no notification of discrepancies has been sent to FENWICK IBERICA S.A. within 8 days after delivery or installation of the products by FENWICK IBERICA S.A. Any damage resulting from delivery or transport must be reported to the carrier upon receipt of the goods, sending a copy to FENWICK IBERICA S.A. within the same period. Otherwise, the claim may be disregarded. Unless otherwise stipulated, prices do not include the assembly or commissioning of the systems, nor potential spare parts kits. During the assistance of FENWICK IBERICA S.A. technicians at the place of installation of the products, it shall be the sole responsibility of the customer to supply power, handling or other equipment, raw materials or other materials. In the event that potential modifications to the products are the result of a lack of information or an error in the data submitted, or due to changes in the installation or the environment, the cost of these modifications and the time spent will be invoiced to the customer. If the on-site assistance of FENWICK IBERICA S.A. technicians is due to causes beyond its control, the waiting time will be invoiced to the customer, as well as the cost of any unforeseen travel.
- FENWICK IBERICA S.A. retains ownership of the products until full payment of the same and the expenses incurred, taking into account that the sending of promissory notes or other type of guarantee documents does not constitute payment. If payment is not made in full by the due date, FENWICK IBERICA S.A. reserves the right, at its discretion, to request the customer, without the customer being able to oppose and at its own expense, to return the product, or to claim the recovery of the products sold. This action may concern all products of the same type that the customer may have in its factory at the time of the claim. In case of resale of reconverted products, the seller is considered co-owner of the products and the amount is increased to the unpaid amount. The buyer may not carry out any operation of conversion of the products, or incorporation of the same in other systems, which may prevent the seller from recovering them in their original state. The seller may publish its reservation of title in accordance with the current regulations, in order to safeguard the validity and the obligation to comply with this reservation clause. Notwithstanding this clause, and after delivery of the products, the customer is liable for damage, loss or theft of the products after delivery. He shall also take out the corresponding insurance, subrogating in favor of FENWICK IBERICA S.A. all the rights for which he could be compensated in case of loss or theft of the products delivered and which have not been fully paid for.
- In the event of a well-founded and admissible claim by FENWICK IBERICA S.A. and in the absence of any other agreement between the parties, FENWICK IBERICA S.A. undertakes to accept the return of the products in question. With this claim, the customer will only be entitled to reimbursement of the price shown on the invoice issued at the time of delivery, or replacement of the products in question at the place of initial delivery and as soon as possible. FENWICK IBERICA S.A. reserves the right to choose between these two possibilities. The costs and risks of the return shall be borne by the customer.
- FENWICK IBERICA S.A. is not obliged, under any circumstances, to deliver the production drawings, not even in the case that the products are supplied with a diagram of use. The drawings and documents delivered to the customer are the property of FENWICK IBERICA S.A. and are confidential. The customer is forbidden to transmit them, knowingly or otherwise, to third parties and may only use them for the operation or maintenance of the products. The technology and know-how, patented or not, incorporated in the products, as well as the industrial and intellectual rights related to the products, are the exclusive property of FENWICK IBERICA S.A. The customer only has the right to use and maintain the products, which are non-exclusive and non-transferable. The right to have spare parts or have them manufactured is excluded.
- The warranty obligation of FENWICK IBERICA S.A., whatever its origin, only gives rise to the compensations indicated in article 6, excluding any other damages of any kind. This provision does not exclude the application of the rules relating to the seller's statutory warranty for latent defects.
- FENWICK IBERICA S.A. and the customer accept no liability for any delay in contractual obligations caused by force majeure or exceptional circumstances.
- Payment shall be made in the currency specified in the contract. The total amount payable is the amount indicated on the invoice. This amount is not subject to reductions or deductions other than those previously agreed, in writing, by FENWICK IBERICA S.A. Offers submitted in a currency other than the Euro are based on the exchange rate in force on the date of the offer and, unless otherwise specified, the offer is subject to revision upwards or downwards according to the exchange rate in force on the date of confirmation of the order. Payments shall be made to the bank account of FENWICK IBERICA S.A. indicated on the invoices, in the periods specified in the contract. 30% of the price shall be paid when the order is placed and the remainder 30 days after the delivery date. No reduction, set-off or retention of any kind whatsoever may be binding on FENWICK IBERICA S.A. If full or partial payment is not made on the due date, the customer may be required to pay the seller a penalty equal to two and a half times the basic bank interest in force on the due date of the unsatisfied invoice. This penalty will be applied automatically, without FENWICK IBERICA S.A. being obliged to send the customer an official notification to this effect. When payment was to be made by bill of exchange, if the bill of exchange is not honored, it will be considered as not accepted, being comparable to a non-payment. In case of payment in installments, the non-payment of one of the installments shall represent the non-payment of the entire debt, without formal notification, as well as the non-payment of all orders in progress.
- Warranties
11.1 FENWICK IBERICA S.A. undertakes to remedy any operational problem in the products that is due to a defect in design, materials or workmanship. This obligation does not extend to cases where the problem is caused by maintenance that has not followed the recommendations of FENWICK IBERICA S.A. or, in the absence of such recommendations, by the non-application of good professional practice, or by an inappropriate environment for the products (from a chemical, atmospheric, electrical or other point of view), or by excessive use of the products, or if the installation and/or connection recommendations have not been followed. The warranty is also excluded for consumables, replacements or repairs resulting from normal wear and tear of the products, damage or accidents caused by incorrect control of the products, or by the use of the products in an application for which they are not intended and/or does not follow the recommendations of FENWICK IBERICA S.A. and, in general, for any incident for which the seller is not responsible. The warranty shall not apply if the customer has made changes or additions to the products without the express agreement of FENWICK IBERICA S.A.
11.2 FENWICK IBERICA S.A. does not cover any warranty on the ability of the products to meet the objectives set by the customer, if such objectives have not been expressly accepted by FENWICK IBERICA S.A.;
11.3 The warranty is valid for 24 or 12 months (depending on the product and its nature) from the delivery of the products, in the sense specified in article 4. The repair, modification or replacement of parts during the warranty period shall not have the effect of extending the warranty period. Service for repair or replacement of defective parts at the Customer's plant shall be free of charge during the first year.
11.4 Under this warranty, FENWICK IBERICA S.A. shall at its own expense remedy any defects found, as soon as possible and by such means as it deems appropriate. Repairs or replacements shall be made at the customer's plant. Replaced parts shall become the property of FENWICK IBERICA S.A.;
11.5 To invoke this warranty, the customer shall inform FENWICK IBERICA S.A. of the defects attributed to the products and provide all supporting information relating thereto. It shall give FENWICK IBERICA S.A. the opportunity to draw up a report of the faults and to remedy them. It shall refrain from remedying the defect itself or by a third party, unless expressly agreed by FENWICK IBERICA S.A.
11.6 FENWICK IBERICA S.A. does not cover any warranty or liability, express or implied, relating to the Software or its related documentation, as to its quality, performance, ability to perform a particular task, or its suitability for a particular need. FENWICK IBERICA S.A. reserves the right to send corrected or updated versions of the software at any time. - FENWICK IBERICA S.A. may, without prejudice to any other rights, terminate in whole or in part a contract, where there is no response to an official notice, at FENWICK IBERICA S.A.'s discretion, or may suspend a delivery or performance of a contract in any of the following cases:
In case of non-payment, upon expiration of the entire debt or any of the installments due by the customer;
In the event of the customer's failure to present a bill of exchange or other secured document stipulated in the contract, it being noted that, in this case, this right to terminate or suspend the contract only applies to the contract in which the customer has defaulted on its obligations;
In the event that the customer refuses to receive the products in accordance with the terms of the contract;
If the customer becomes insolvent by receivership or liquidation, or agrees an amicable payment arrangement with its creditors, or in the event of the possibility of dissolution of the customer's company, or if the customer suspends payment of all or part of its debts, FENWICK IBERICA S.A. may exercise the aforementioned rights of termination and suspension at any time, provided that the reason that has generated this right has not ceased or recovery has not been given rise to. In the event of such suspension, FENWICK IBERICA S.A. may continue to deliver products stipulated in other contracts by prepayment thereof, or by receipt by FENWICK IBERICA S.A. of guarantees of payment of the price of future deliveries;
In the event of non-compliance with the provisions of the contract, FENWICK IBERICA S.A. shall terminate the contract, specifying the contractual provision or provisions that have not been complied with;
In the event that FENWICK IBERICA S.A. recovers the products, and in order to compensate it for their loss of value, resulting from their depreciation or even their unavailability, the customer will pay FENWICK IBERICA S.A. a compensation of 10% of the price of the products for each month that they have been in its possession. This amount may be offset against any potential payments on account made by the customer. - The contract is subject to the provisions of Spanish Law and can only be interpreted in accordance with Spanish Law. Disputes between the parties during the period of purchase of the products fall within the exclusive jurisdiction of the Commercial Court of Barcelona. This attribution of jurisdiction is also valid in case of multiple defendants and for any reason whatsoever, even incidental, or in case of claims by third parties. The settlements of amounts shall not entail any innovation or special dispensation on these jurisdiction attribution clauses, which are fundamental to the contracts.
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