TERMS AND CONDITIONS OF SALE OF PRODUCT OR SERVICE
BRITISH FEDERAL MÉXICO, S.A. DE C.V.
NOTICE: The sale of any Product or Service is expressly conditioned upon Buyer’s acceptance of these terms and conditions. Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly rejects any additional or different terms proposed by Buyer. No entry form shall modify these Terms and Conditions even if signed by the Seller’s representative. Any order to perform work and the performance of work by Seller shall constitute acceptance of these Terms and Conditions by Buyer. Unless otherwise stated in the offer, Seller’s offer will expire 30 days from the date of the offer and may be modified or cancelled by Seller prior to receipt of Buyer’s concurrence acceptance.
1. DEFINITIONS:
“Buyer” means the entity to which Seller supplies the Products or provides the Services under the “Quotation”. ” Quotation” means the contractual agreement signed by both parties or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products or Services, together with these Terms and Conditions, Seller’s final quotation and agreed scope(s) of work and Seller’s order confirmation. In case of conflict, the Terms and Conditions shall take precedence over all other documents included in the “Quotation”. “Gross Fault” refers to any act carried out with omission of the most elementary diligence, without taking into account the obvious consequences and possible and foreseeable risks arising therefrom. “Dolo” refers to an intentional and negligent act and some act, in both cases with the intent to inflict damage or injury. “Quotation Price” means the price stated in the Quotation for the sale of the Products and Services, including adjustments (if any) in accordance with the Quotation. “Hazardous Materials” means any toxic or hazardous substance, hazardous material, hazardous waste, hazardous product, hazardous product, radioactive material, petroleum or petroleum products or by-products, or other chemicals, materials or emissions that are regulated, listed or controlled under national, state, provincial or local laws, statutes, ordinances, regulations and standards or any other legal requirements of Mexico or the country of the Facilities. “Insolvency proceedings” when a party becomes insolvent and is unable to make all of the payments due. Insolvency proceedings cover bankruptcy and suspension of payments. “Product” means the equipment, parts, materials, supplies, software and other goods that Seller has agreed to supply Buyer under the Quotation. “Seller” means the entity supplying Product or providing Services under the Contract. “Services” means the services that Seller has agreed to provide to Buyer under the Contract. “Premises” means the premises at which the Products are used or at which the Services are provided, not including the Seller’s premises from which it provides the Services. “Terms and Conditions” means these “Terms and Conditions of Sale of Goods and Services” and any attachments that may be incorporated under clause 18, together with any modifications or additional provisions particularly stated in Seller’s final offer or specially agreed to in writing by Seller.
2. PAYMENT.
2.1 Buyer shall pay Seller for the Goods or Services by payment of all invoiced amounts at the agreed rate of exchange, without set-off of any payment by Seller not due under the quotation, within thirty (30) days, from the date of issuance of the invoice. For each calendar month, or fraction of a calendar month, that payment is overdue, Buyer shall pay a late payment charge at the rate of 1.5% per month, on the overdue balance, or the maximum rate permitted by law, whichever is less.
2.2 If requested by Seller, Buyer shall establish and maintain in effect at its own expense a payment guarantee in the form of an irrevocable, unconditional, first demand letter of credit or bank guarantee allowing for prorated payments as Products are shipped and Services are rendered, plus payment of cancellation and termination charges and all other amounts due from Buyer under the Quotation for “Payment Guarantee”. Payment Guarantee A) Shall be drawn up in accordance with and/or issued by a bank acceptable to Seller. B) It shall be payable at the windows of such acceptable bank or negotiating bank. C) Shall be open and executable at least sixty (60) days prior to the date of the first scheduled shipment of the Products, as well as the date of commencement of the Services and. D) Shall remain in effect until the later of ninety (90) days after E) the last scheduled shipment of Products, F) the completion of all Services and G) Seller’s receipt of the final payment required under the Quotation. Buyer shall at its sole expense increase the amount(s), extend the period(s) of validity and make any other appropriate modifications to any Payment Guarantees within ten (10) days of notification by Seller that such adjustment is necessary in connection with Buyer’s obligations under the Quotation.
2.3 The Seller is not obliged to commence or continue performance of its obligations unless and until all required, valid and effective Payment Guarantees have been received and all corresponding Partial Payments have been received. For each day of delay in the receipt of Partial Payments or acceptable Payment Security, Seller shall be entitled to extend the payment schedule accordingly. If at any time, Seller reasonably determines that Buyer’s financial status or payment history does not justify Seller’s continued performance of its obligations, Seller shall have the right to demand in advance full or partial payment or otherwise restructure payments, request additional forms of Payment Security, suspend performance of its obligations or terminate the Quotation.
3. TAXES AND FEES.
Seller shall be responsible for all corporate taxes calculated from net income as a result of performing or paying for work under this “Quotation” (“Seller Taxes”). Buyer shall be responsible for all taxes, levies, duties or other charges of any nature whatsoever (including, without limitation, excise, gross receipts, import, property, sales, stamp, billing, use or value added taxes and all items of withholding, deficiency, penalty, addition to tax, interest or assessment related thereto imposed by any state authority on Buyer or Seller or its subcontractors) in connection with the Quotation or the performance or payment of work under the Quotation except for Seller’s Taxes (“Buyer’s Taxes”). The Quote Price does not include the amount of any Buyer’s taxes. If Buyer deducts or withholds taxes from Buyer, Buyer will pay additional amounts so that Seller receives the full Quote Price without deduction for Buyer’s Taxes. Buyer shall provide Seller, within one month of payment, with official receipts from the competent state authority for tax deductions or withholdings.
4. DELIVERIES, TRANSFER OF OWNERSHIP, RISK OF LOSS AND STORAGE.
4.1 For shipments not involving export, including shipments from Mexico to another country, Seller will deliver Products to Buyer at Seller’s FCA facility or warehouse. For export shipments, Seller shall deliver the Products to Buyer in FCA export port condition. Buyer shall pay all delivery costs and charges or pay Seller’s standard shipping costs plus a surcharge of up to twenty-five percent (25%). Partial deliveries are allowed. Seller may deliver the Products in advance of the delivery date. Delivery schedules are approximate and depend on timely receipt by the Seller of all necessary information to continue the work without interruption. If the Products delivered do not correspond in quantity, type, or price with those stated on the invoice or shipping documents, Buyer shall so advise Seller within ten (10) days of receipt.
4.2 For shipments not involving export, ownership of the Products shall pass to Buyer upon delivery in accordance with Section 4.1. For export shipments from a Seller’s facility or warehouse outside the United States, title will pass to Buyer upon delivery in accordance with Section 4.1. For shipments from the U.S. to another country, ownership will pass to Buyer immediately upon each item leaving the territory, airspace and territorial waters of the United States. For all other shipments, ownership of the Products shall pass to Buyer. (i) at the port of export after the Products have been cleared for export; or (ii) at the port of export after the Products have been cleared for export; or (ii) immediately after each article leaves the territory, airspace and territorial waters of the sending country, whichever is earlier. If Buyer arranges export or inter-community shipment, Buyer shall provide Seller with proof of export or inter-community shipment acceptable to the appropriate tax and customs authorities.
4.3 Risk of loss passes to Buyer upon delivery in accordance with section 4.1, except for export shipments from the U.S., where risk of loss passes to Buyer upon transfer of ownership.
4.4 If any of the Goods to be delivered under this “Quotation” and if any of Buyer’s equipment repaired at Seller’s facilities cannot be shipped to and/or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Goods and equipment to a storage facility, including storage at the place of manufacture or repair or to an agreed carrier/transit. If Seller stores Products or equipment, the following shall apply: (i) ownership and risk of loss pass immediately to Buyer, if not already transferred, and delivery shall be deemed to have been made; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due and payable; (iii) all expenses and charges incurred by Seller in connection with warehousing shall be payable by Buyer upon presentation of Seller’s invoices; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make the repaired Products and equipment available to Buyer for delivery.
4.5 If Repair Services are to be performed on Buyer’s equipment at Seller’s premises, Buyer shall be responsible for such equipment and shall bear the risk of loss thereon at all times, except that Seller shall be liable for damage to the equipment while at Seller’s premises provided such damage is caused by Seller’s negligence.
5. WARRANTY.
The warranty is expressed in accordance with Art. 77 and 78 of the LFPC, where a supplier undertakes to repair or replace the good or service at no extra cost for a minimum period of six months. Our products and services are guaranteed by the manufacturer for a period of 6 months, if used properly according to its use (See the instructions for use). The product will be exchanged for an equal product in good working condition. To make the warranty valid, it is necessary to present the purchase invoice and the product without opening the warranty seals, so that your product can be replaced. This warranty is valid only for the first six months after the purchase of the product.
VALIDATE WARRANTY: This document must be delivered at the moment of receiving the good or service (Art. 78 LFPC). If it is necessary to apply the warranty, the customer should contact directly with the seller who made the sale of the products and services and this should indicate the protocol to follow or send an email to ventas@bfmx.com or qsr@bfmx.com., indicating in Subject: “VALIDATE WARRANTY”. The guarantee will be required both from the supplier and from the producer or importer. In case of making a necessary expense to fulfill the warranty (such as transporting parts, for example), it will be paid by the supplier as long as it is made in a different place from where it was purchased or to the places indicated in the policy of origin (Art. 79 LFPC). When the article is not repaired and is replaced by another, the warranty period shall be restarted (Art. 83 LFPC). When, in spite of having repaired, the product still presents imputable deficiencies, you will have up to 30 calendar days to demand that it is repaired again. Thus, until it is well (Art. 81 LFPC). Remember that, as a consumer, when you find a “hidden defect” or fault – and that it is not due to misuse – you can request the restitution of the good or service or a refund of the price paid for the object (Art. 82 LFPC).
VOID WARRANTY: The warranty will remain valid within the first six months of the purchase of the product, as long as the product has not been modified, opened, disassembled or repaired in any of its original components (It has not been used improperly, has not been tampered with, has not suffered deterioration or damage caused by mishandling and has not been damaged by external agents for which the user is responsible such as water, acid and other substances. Consider the following points specifically for Warranties:
5.1 Seller warrants that the Goods will be delivered free from defects in respect of materials, workmanship and workmanship and that the Services will be competently and diligently presented in accordance with mutually agreed specifications.
5.2 The Warranty period for Products and Services is one year from delivery, provided they are not modified.
5.3 If the Goods or Services do not conform to the foregoing warranty, Buyer shall promptly notify Seller in writing prior to the end of the warranty period of such nonconformity. THE SELLER (i) at its discretion, repair or replace the defective Products and (ii) will return to provide the Services considered deficient. If despite Seller’s reasonable efforts a Non-Conforming Product cannot be repaired or replaced, or Non-Conforming Services cannot be performed again, Seller will refund or credit any monies paid by Buyer for such Non-Conforming Products and Non-Conforming Services. Repair, replacement or new warranty performance by Seller shall not extend or renew the applicable warranty period. Buyer shall obtain Seller’s approval of the specifications of any tests it plans to perform to determine whether a nonconformance exists.
5.4 Buyer shall bear the access costs necessary to carry out Seller’s warranty rectification work (including removal or replacement of systems, structures or other parts of Buyer’s facilities), disassembly, decontamination, reinstallation and transportation of defective Products to Seller and back to Buyer.
5.5 Warranties and rectifications are conditional upon (a) the proper storage, installation, use, operation and maintenance of the Products, (b) that the Buyer maintains accurate and complete operating and maintenance records during the warranty period and provides the Seller with access to those records, and (c) modification or repair of the Products or Services only as authorized by Seller in writing. Failure to comply with any of these conditions will invalidate and void the warranty. The Seller is not responsible for normal wear and tear.
5.6 This warranty can only be modified by written agreement or in case of a specific warranty listed in this “Quotation”.
5.7 This clause 5 sets out the exclusive rights and remedies for all claims based on faults or defects in the Products or Services, regardless of when the fault or defect appears and whether or not the claim, however described, is based on contract, warranty, indemnity, tort (including negligence), strict liability or otherwise. The warranties set forth in this clause are exclusive and in lieu of all other written, oral, implied or statutory warranties and conditions.
6. CONFIDENTIALITY.
6.1 The Seller and the Buyer (in relation to the information disclosed, the “Disclosing Party”) may provide each other (in relation to the information received, the “Receiving Party”) with Confidential Information relating to this “Quotation”. “Confidential Information” means. (a) information identified in writing as “Confidential” or “Proprietary” of the Disclosing Party at the time of its written disclosure and (b) information orally identified as “confidential” or “proprietary” by the Disclosing Party at the time of oral or visual disclosure and confirmed as “confidential” or “proprietary” in writing within twenty (20) days of the date of the oral or visual disclosure. In addition, prices for Products and Services shall be considered Seller’s Confidential Information.
6.2 The Receiving Party undertakes to: (i) use the Confidential Information solely in connection with the “Quotation” and the use of the Products and Services, (ii) take reasonable measures to prevent the disclosure of the Confidential Information to third parties; and (iii) not to disclose Confidential information to a competitor of the Disclosing Party. Regardless of these restrictions, (a) Seller may disclose Confidential Information to its affiliates and subcontractors in connection with the performance of the “Quotation”, (b) a Receiving Party may disclose Confidential Information to its auditors, (c) the Purchaser may disclose Confidential Information to lenders as required to obtain or maintain financing necessary to perform its obligations under the Agreement and (d) a Receiving Party may disclose Confidential Information to another third party with the prior written authorization of the Disclosing Party and, in which case, only on condition that the Receiving Party obtains a nondisclosure undertaking from all of its subcontractors, auditors, lenders and other authorized third parties prohibiting disclosure of the Confidential Information and further providing that the Receiving Party remains liable for any unauthorized use or disclosure of the Confidential Information. Upon request, the Receiving Party shall return to the Disclosing Party or destroy all copies of Confidential Information. Upon request, the specific Receiving Party to the Contract authorizes the Receiving Party to retain an item of Buyer’s Confidential Information.
6.3 The obligations under this clause 6 shall not apply to portions of the Confidential Information that: (i) are or become generally available in the public domain otherwise than through a disclosure by the Receiving Party, its agents or affiliates; (ii) are or become available to the Receiving Party on a non-confidential basis from a source other than the Receiving Party where the source is not, to the best of the Receiving Party’s knowledge, subject to an obligation of confidentiality to the Disclosing Party; (iii) are prepared independently by the Receiving Party, its representatives or affiliates, without reference to the Confidential information; (iv) must be disclosed by Law or valid legal process provided that the Receiving Party intending to make the disclosure reasonably cooperates in attempts to preserve the confidentiality of the Confidential Information.
6.4 Each Disclosing Party warrants that it has the right to disclose the information it discloses. Neither Buyer nor Seller shall make any public announcement of the quotation without the prior written consent of the other party. With respect to any part of the Confidential Information, the restrictions of this clause 6 shall lapse within five (5) years from the date of disclosure. Clause 6 is not a substitute for any separate confidentiality or non-disclosure agreement signed by the parties.
7. INTELLECTUAL PROPERTY.
7.1 Seller shall defend and indemnify Buyer against any claim by an unaffiliated third party (a “Claim”) that the Products or Services provided under this “Quotation” infringe a patent or any intellectual property or trademark in the country of the Facilities, provided that Buyer: (a) Promptly notify Seller in writing of the Claim, (b) does not make an admission of liability and does not take a position adverse to Seller, (c) grants to the Seller the exclusive authority to control the defense and settlement of the Claim and (d) provide Seller with full details and such reasonable assistance as may be required to defend the Claim.
7.2 Section 7.1 shall not apply and Seller shall have no obligation or liability in connection with claims based on: a) Products or Services that have been modified or revised, (b) the combination of the Contract Products or Services with other products or services where such combination is a basis for the alleged infringement, (c) failure of Buyer to implement an update provided by Seller that would have prevented the Claim, (d) unauthorized use of the Products or Services, or (e) the Products or Services performed or rendered in accordance with Buyer’s specifications.
7.3 If any Product or Service, or any part thereof, becomes the subject of a Claim, Seller may, at its sole discretion, (b) modify or replace it in whole or in part so that it does not constitute an infringement, or (c) in the absence of (a) or (b) remove the infringing Products or Services and refund the price received by Seller attributable to the infringing Products or Services.
7.4 Clause 7 indicates the exclusive liability of the Seller for an infringement of intellectual property rights of Products and Services.
7.5 Each party shall retain ownership of all Confidential Information and intellectual property owned prior to the “Quotation”. Any new intellectual property conceived or created by Seller in the performance of this “Quotation”, whether independently or with any contribution from Buyer, shall vest solely in Seller. Buyer agrees to deliver assignment documents as required to achieve that result.
8. INDEMNIFICATION.
Both Buyer and Seller (as “Indemnifying Party”) shall indemnify the other party (as “Indemnified Party”) from and against all claims brought by a third party on account of personal injury or damage to tangible property of such third party, to the extent caused by the negligence of the Indemnifying Party in connection with this “Quotation”. If the injury or damage is caused by the joint or concurrent negligence of Buyer and Seller, the loss or expense shall be borne by each party according to its degree of negligence. For the purposes of Seller’s indemnification obligation, no part of the Products or the Facilities shall be deemed to be the property of any third party.
9. INSURANCE.
During the term of the Quotation, Seller shall maintain for its protection the following insurance coverage: (i) Workers’ Compensation, Business Liability and other insurance required by law in connection with work-related accidents or illness of Seller’s employees in the form(s) and in the amount(s) required by applicable law; (ii) automobile liability insurance; and (iii) automobile insurance. (iii) commercial general liability insurance or liability insurance for bodily injury and property damage. If required by the “Quotation”, Seller shall provide a certificate of insurance reflecting such coverage.
10. FORCE MAJEURE.
Seller shall not be liable or be deemed or deemed to be in breach of its obligations under this Agreement where Seller’s performance is delayed or hindered, directly or indirectly, by a cause beyond its reasonable control, or by armed conflict, acts or threats of terrorism, epidemics, strikes or other labor disputes or acts or omissions of a state authority or of Buyer or Buyer’s contractors or suppliers. If a force majeure event occurs, Seller’s performance schedule will be extended by the amount of time lost due to the event plus such additional time as may be necessary to overcome the effect of the event. If acts or omissions of Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable adjustment of the price.
11. TERMINATION AND SUSPENSION.
11.1 The Buyer may terminate the Quotation (or the affected party) for just cause if the Seller (i) will be in bankruptcy proceedings, or (ii) materially breaches its material obligations under the Quotation that does not otherwise have an otherwise specified contractual cure and, provided that: (a) the Buyer had previously notified the Seller in writing and in detail of the existence of the breach and of its intention to terminate the Quotation, and (b) the Seller, within thirty (30) days after receipt of the notice, has not diligently commenced to cure the breach.
11.2 If Buyer terminates the Quotation in accordance with Section 11.1, (i) Seller shall reimburse Buyer for the difference between that portion of the Quotation Price attributable to scope and (ii) the Buyer shall pay to the Seller (a) the portion of the Quote Price attributable to the completed Products, (b) the rental income supported and (c) amounts for Services rendered prior to the effective date of termination. The amount derived for the Services rendered shall be determined in accordance with the schedule of events (for completed events) and the conditions set forth in the Quotation (for work directed towards the achievement of events not yet achieved and where there is no schedule of events), as applicable, or, where there are no events and conditions in the Quotation in time and of Seller’s current materials.
11.3 The Seller may suspend or terminate the Quotation (or any affected part thereof immediately for cause if the Buyer (i) is in insolvency proceedings, or (ii) materially breaches its material obligations under the Contract, including, without limitation, Buyer’s failure or delay in delivering the Payment Security and making any payment when due, or fulfilling any payment condition.
11.4 If the Quotation (or any part thereof) is terminated for any reason other than Seller’s default under Section 11.1, Buyer shall pay Seller for all Products completed, lease rentals supported and Services rendered prior to the effective date of termination, as well as expenses reasonably borne by Seller in connection with the termination. The amount due for the Services shall be determined in accordance with the schedule of events (for completed events) and the conditions set forth in the Quotation (for work directed to the achievement of events not yet achieved and where there is no schedule of events, as applicable, or, where there are no events and no Quotation conditions, to Seller’s current time and material conditions. In addition, Buyer shall pay Seller a cancellation fee of the quotation price applicable to uncompleted Products made upon request and of the contract price applicable to all other uncompleted Products.
11.5 The Buyer and the Seller may terminate the Quotation (or the affected part thereof) by giving twenty (20) days’ notice if there is any force majeure event (as described in clause 10) the duration of which exceeds one hundred and twenty (120) days. In such event, Buyer shall pay Seller the amounts payable under Section 11.4, except for the cancellation fee for uncompleted Products.
11.6 Buyer shall pay all reasonable expenses incurred by Seller in connection with a suspension, including, but not limited to, costs of recovery, collection of fees, demobilization/remobilization and storage costs during the suspension. The schedule for Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.
12. COMPLIANCE WITH LAWS, REGULATIONS AND STANDARDS.
12.1 Seller shall comply with the laws applicable to the manufacture of Products and provision of Services. Buyer shall comply with applicable laws regarding the application, operation, use and disposal of the Products and Services.
12.2 Seller’s obligations are conditioned upon Buyer’s compliance with all applicable Mexican and other laws and regulations controlling commercial transactions. Buyer shall not transship, re-export, re-route or re-route Products except in and to the country of final destination declared by Buyer and specified as the country of final destination on Seller’s invoice.
12.3 Notwithstanding any other provision, Buyer shall obtain, make and maintain in effect on a timely basis all required permits, licenses, exemptions, documentation filings, registrations and other authorizations, including, but not limited to, construction and environmental permits, import licenses, environmental impact assessments and foreign exchange authorizations, required for the lawful performance of the Services at the Facilities or the performance of Buyer’s obligations, with the justification that Seller shall obtain all necessary licenses or registrations for Seller’s personnel. Buyer shall provide reasonable assistance to Seller in obtaining such visas and work permits.
13. ENVIRONMENTAL, HEALTH AND SAFETY ISSUES.
13.1 Buyer shall maintain safe working conditions on the Premises, including, without limitation, implementing appropriate procedures regarding Hazardous Materials, confined space entry and activation and deactivation of power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out (“LOTO”) procedures, including physical LOTO or a mutually agreed upon alternative method.
13.2 Buyer shall promptly advise Seller in writing of all health, safety and environmental requirements and procedures specific to the Facilities. Without limiting Buyer’s responsibilities under Clause 13, Seller has the right, but not the obligation, from time to time to review and inspect the documentation, procedures and health, safety and environmental conditions applicable at the Premises.
13.3 If, in the reasonable opinion of the Seller, health and safety personnel or the Premises, are or may be endangered by security risks, terrorist acts or threats, the presence or threat of exposure to Hazardous Materials or unsafe working conditions, the Seller may, in addition to any other rights or actions and remedies available to it, evacuate some or all of its employees from the Premises, suspend performance of all or part of the Contract and/or perform or supervise work remotely. Any such event shall be considered a force majeure event. The purchaser shall reasonably assist in such evacuation.
13.4 The operation of Buyer’s equipment is the responsibility of Buyer. Buyer shall not require or permit Seller’s personnel to operate Buyer’s equipment on the Premises without prior authorization and request.
13.5 Buyer shall make the medical facilities and resources of the Facilities available to Seller’s personnel in need of medical attention.
13.6 Seller shall have no liability whatsoever for the pre-existing condition of Buyer’s equipment or the Premises. Prior to Seller’s personnel commencing any work on the Premises, Buyer shall provide documentation identifying the presence and condition of all existing Hazardous Materials on or near Buyer’s equipment or Premises where they may be encountered during the performance of this Quotation. Buyer shall disclose to Seller occupational hygiene and environmental monitoring data regarding conditions that may affect Seller’s work or personnel at Buyer’s Premises. Buyer shall keep Seller informed of changes in such conditions.
13.7 Seller shall notify Buyer if it becomes aware of: (i) conditions at the Premises that differ materially from those stated by Buyer, or (ii) previously unknown physical conditions at the premises which differ materially from those normally encountered and generally recognized as inherent in work of the nature stated in the Quotation. If such conditions result in an increase in the cost or time required by Seller for the performance of any part of the work under the Quotation, an equitable adjustment in price and schedule will be made.
13.8 If Seller finds Hazardous Materials in Buyer’s equipment or on the Premises requiring special handling or disposal, Seller’s personnel shall not be required to continue the work affected by the hazardous conditions. In such event, Buyer shall remove hazardous conditions in accordance with applicable laws and regulations so that the work of Seller’s personnel under the Contract may proceed safely and Seller shall be entitled to an equitable adjustment in price and schedule to compensate for any increase in cost or time required by Seller for the performance of any part of the work. Buyer shall properly store, transport and dispose of all Hazardous Materials introduced, produced or generated in the course of Seller’s work at the Premises.
13.9 The Buyer shall indemnify the Seller against all claims, damages, losses and expenses arising out of or in connection with Hazardous Materials that (i) are or were present on or near Buyer’s equipment or the Premises prior to the commencement of work by Seller’s personnel, (ii) are improperly handled or disposed of by Buyer or Buyer’s employees, agents, contractors or subcontractors; or (iii) carried, generated, produced or released on the Premises by third parties other than Seller.
14. MODIFICATIONS.
14.1 Either party may at any time propose changes to the schedule or scope of the Products or Services. Seller is not obligated to make any modifications until agreed upon in writing by both parties. The written documentation agreeing to the modification shall describe the changes in scope and schedule and the resulting changes in price and other provisions as agreed.
14.2 The scope, quotation price, schedule and other provisions shall be equitably adjusted to reflect additional costs and obligations assumed by Seller resulting from a change, after Seller’s proposal date, in requirements or procedures specific to Buyer’s Facilities, or in applicable specifications, codes, industry standards, laws or regulations. However, no adjustments will be made due to a general change in Seller’s manufacturing or repair facilities resulting from a change in laws or regulations applicable to such facilities. Unless otherwise agreed between the parties, the price for additional work resulting from such modifications shall be invoiced in accordance with the time and material conditions supplied by Seller.
14.3 It shall be acceptable and shall not be considered a modification for Seller to supply a Product bearing a different part or version number, substituted for new as compared to the part or version number stated in the Quotation.
15. LIMITATIONS OF LIABILITY.
15.1 Except in the case of Tort or Fraud, Seller’s total liability for all claims of any kind arising out of or in connection with the execution, performance or breach of this Quotation or any Product or Service shall not exceed (i) Quote Price, (ii) if Buyer places multiple orders under the Quotation, the price of each particular order for all claims arising out of or relating to that order and for all claims that are not part of a particular order.
15.2 Except in the case of Gross Fault or Wrongful Death, Seller shall not be liable for loss of profits, loss of use of equipment or systems, business interruption, cost of substitute energy, cost of capital, downtime costs, increased operating costs, consequential damages, or claims of Buyer’s customers for any of the foregoing types of damages.
15.3 All liability of the Seller shall terminate upon expiration of the relevant warranty period. Notwithstanding the foregoing, where Buyer may continue to enforce a claim that has been notified prior to such date by commencing an action in court or arbitration, as applicable under this Quotation, prior to the expiration of any statute of limitations or other legal limitation of time, but in no event later than one year from the end of such warranty period.
15.4 Seller shall not be responsible for advising or rendering assistance not required for the scope of work under this quotation.
15.5 If Buyer supplies Products or Services to a third party, or uses Products or Services at Facilities owned by a third party, Buyer: (i) Indemnify and defend Seller from and against any and all claims of liability against such third party beyond the limitations set forth in this clause 15, or (ii) require the third party to agree, for the benefit of Seller, and Seller may impose, to be bound by all of the limitations contained in this clause 15.
15.6 For the purposes of this clause 15, the term “Seller” means the Seller, its affiliates, subcontractors and suppliers of any tier and their respective employees. The limitations of this clause 15 shall apply regardless of whether a claim is in contract, is based on warranty, is in indemnity, or arises in tort (including negligence), strict liability or otherwise and shall prevail over all conflicting terms, except to the extent such terms further restrict Seller’s liability.
16. CURRENT LEGISLATION AND CONFLICT RESOLUTION.
16.1 This Quotation shall be governed by and construed in accordance with the laws (i) of the State of Spain; without giving effect to any choice of law rules that would cause the application of the laws of another jurisdiction (the “Governing Law”). If the Contract involves the sale of Goods and the Buyer is outside the Seller’s country, the United Nations Convention on Contracts for the International Sale of Goods shall apply.
16.2 All disputes arising in connection with this Agreement, including all questions concerning its existence or validity, shall be resolved in accordance with this clause 16. If a dispute is not resolved by negotiation, either party may give notice in writing, refer the dispute to a meeting of the appropriate level of Senior Management, which shall be held within twenty (20) business days after delivery of such notice. If the dispute is not resolved within thirty (30) business days after delivery of the notice or such later date as may be mutually agreed upon, the dispute shall be submitted to and finally resolved by trial.
16.3 Notwithstanding the foregoing, each party shall have the right at any time, at its discretion and where permitted by law, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Agreement, to seek a restraining order, injunction or similar order to enforce the provisions and confidentiality stated in Clause 6 and/or the nuclear use restrictions stated in Section 19.1, or to seek interim or injunctive relief. Only monetary damages in accordance with section 16.2 shall be available.
17. INSPECTION AND TESTING OF INSTALLATIONS.
Seller shall apply its normal quality control procedures in the installation of the products. Seller will attempt to accommodate Buyer’s requests to be present at Seller’s factory testing of products, subject to appropriate access restrictions, if Buyer’s presence can be arranged without delaying the work.
18. SOFTWARE, LEASED EQUIPMENT, REMOTE DIAGNOSTIC SERVICES.
If Seller provides Software to Buyer, the Software License Addendum shall apply. If Seller leases its equipment or provides Buyer with associated Services, including the placement of Seller’s equipment at Buyer’s facility to provide remote Services, the Lease Addendum shall apply. If Seller provides Remote Diagnostic Services to Buyer, the Remote Diagnostic Services Addendum shall apply.
19. GENERAL CLAUSES.
19.1 The Goods and Services sold by Seller are not intended for use in connection with a nuclear activity or facility and Buyer warrants that it will not use or permit other parties to use the Goods or Services for such purposes without Seller’s prior written consent. If, in violation of this clause, such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for nuclear or other damage, injury or contamination and, in addition to any other rights of Seller, Buyer shall indemnify and hold Seller harmless for such use, if any, subject to such additional terms and conditions as Seller may determine to be acceptable for protection against liability.
19.2 The Seller may assign or replace its rights and obligations under the Quotation, in whole or in part, to any of its affiliates or may assign any of its debts due under this Quotation or any part thereof without the consent of the Buyer. Buyer agrees to execute all documents that may be required to complete Seller’s assignment. Seller may subcontract parts of the work provided that Seller remains responsible for them. Any delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Seller’s prior written consent (which consent shall be unreasonably withheld) shall be void.
19.3 Buyer shall immediately inform Seller of any change of ownership of more than fifty percent (50%) of the voting rights of Buyer or of any controlling interest in Buyer. If Buyer fails to do so or if Seller objects to the change, Seller may: (a) terminate the Contract, (b) require the Buyer to provide an adequate performance security (including, but not limited to, a payment) and/or (c) apply special controls with respect to Seller’s confidential information.
19.4 If any provision of the Contract is void or unenforceable, this shall not affect the remainder of the Quotation. The parties shall use their best efforts to replace a void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable.
19.5 The following clauses shall survive termination or cancellation of the Quotation: 2,3,4,5,6,7,8,10,11,12,13,15,16,18,19 and 20.
19.6 The Quotation represents the entire agreement between the parties. No oral or written representations or warranties not contained in this Quotation shall be binding upon the parties. The rights, remedies and obligations of Buyer and Seller arising out of or relating to the Products and Services sold or rendered in this Quotation are limited to the rights and obligations stated in this Quotation. No modification, revision, termination or waiver shall be binding on the parties unless agreed to in writing.
19.7 Except as provided in Clause 15 (Limitation of Liability) and Section 19.1 (Non-Nuclear Use), this Quotation is for the benefit of the parties only and no third party shall be entitled to enforce any provision of this Quotation.
19.8 This Quotation may be signed in multiple duplicates which together shall constitute a single agreement.
Version 01
Last update date: 14/December/2020
