General Conditions of Sale - Proinsener Energía

RE04-IT09-02

1. SUBJECT

1.1. These General Conditions of Sale (hereinafter referred to as the “Conditions”) include the terms and conditions that shall apply to the supply of all types of goods, equipment and materials (hereinafter referred to as the “Products”) and/or the provision of all types of services (hereinafter referred to as the “Services”) by PROINSENER ENERGIA S.L., with address at P.A.M.A. C/La Piñuela nº 25-28. 41870 Aznalcóllar, Sevilla, and with the tax code B-90023524 (hereinafter referred to as PROinSENER), to any person or entity that places an Order to PROinSENER and that accepts the following Conditions (hereinafter referred to as the “Buyer”). Therefore, for any purpose, any other conditions that have not been expressly accepted by PROinSENER through their signature and, in the event of a conflict between the provisions of these Conditions and any general conditions of purchase, the provisions of this document shall not be valid. On the contrary, it will take precedence over these Conditions and any others that PROinSENER and the Buyer have recorded in a contract signed by both Partner on the same Order.
1.2. It shall be considered that these Conditions have been communicated to the Buyer from the moment in which he receives an offer of PROinSENER accompanied by these Conditions. Alternatively, they shall be considered as communicated if the Buyer previously received them in the course of their commercial relationship with PROinSENER, considering in all these cases accepted by the Buyer, for all purposes, when placing their Order.
1.3. PROinSENER may modify these Conditions at any time prior to that in which the Buyer places his Order, by notifying PROinSENER. Any subsequent modification will require the acceptance of the Buyer, which will be understood as given in case of not providing an answer to it.
1.4. In case of a dispute with any of the Clauses of these Conditions, the Buyer must present with their Order a List of Exceptions in which they shall clearly address these. PROinSENER may reject any element of the List of Exceptions, which will notify to the Buyer, who, in case of disagreement, must express it in writing within two working days following receipt of the notification by canceling the Order.
1.5. The omission of this List of Exceptions by the Buyer shall imply that he accepts each and every one of the Clauses of the present Conditions.
1.6. The Conditions of PROinSENER, unless otherwise agreed and in writing, prevail over the Buyer’s general conditions of purchase that may appear in their Orders or other documents exchanged between the Parties, even after the submission of these Conditions.
1.7. These Conditions substitute any other condition or previous agreement agreed tacitly or expressly by the Parties, which are considered null and void for all purposes.

2. OFFERS.ORDERS.

2.1. PROinSENER shall send the Offers to the Buyer by e-mail or any other means that allows the accreditation of the delivery. These shall include the following documents: (i) the Offer, (ii) these Conditions, (together, the “Offer”).
2.2. All Orders must be placed in writing, unless stated by PROinSENER, they will be deemed as accepted.
2.3. PROinSENER shall not accept cancellations of the Orders SENT by the Buyer, unless PROinSENER expressly consents to it in writing. In the event that the cancellation of the Contract is authorized, the Buyer shall compensate PROinSENER for the expenses that may have been incurred with regards to the Contract, plus an additional amount of 10% of the price of the Order cancelled as a penalty for cancellation.
2.4. Those specifications on the object of the Order (quantity, reference / s, price / s and description of the Products or Services) that are collected therein will apply. However, PROinSENER reserves the right to introduce the changes it deems necessary in an Order. In substantial cases, the changes will be duly notified to the Buyer, who will have a period of 5 (five) days to reject them (in which case PROinSENER may cancel the Order), after which the substantial changes will be considered accepted.

3. DELIVERY

3.1. Unless PROinSENER specifies otherwise in the Offer, the delivery of the Products shall be made under the conditions of INCOTERM Ex Works. The Buyer shall be obliged to check the Product in the facilities of PROinSENER prior to delivery. The Products are considered compliant by the Buyer once they have been checked in the factory together with PROinSENER. In the event that the Buyer does not execute their right to review the Product, it will be considered accepted by the Buyer, and delivered as long as PROinSENER has notified the availability of the Product.
3.2. PROinSENER will make its best efforts to deliver the Products and the execution of the Services within the stated deadline, which shall be considered as approximate and non-binding, and in no case shall PROinSENER guarantee the fulfillment of these. PROinSENER may make partial deliveries in accordance with partial acceptance by the Buyer and invoice the supplies partially, except that the Buyer, taking into account the interests of both Parties, cannot carry out a partial acceptance to the extent that this is reasonable. When the Products or Services have to be delivered or executed in phases, each delivery or execution will be considered as if it were a separate contract, so that the delivery or defective execution by PROinSENER regarding one or more of the terms will not entitle per se to the Buyer to consider all deadlines not met or to terminate the contract as a whole in advance.
3.3. In the event of a delay in the delivery or execution of the Products or Services subject to the Order attributable to PROinSENER, the Buyer may not apply any penalty, unless (i) both Parties have previously agreed in writing to this point or the delay is attributable to intent or gross negligence, (ii) necessarily produces economic damages to the Buyer and (iii) the delay is directly and exclusively attributable to PROinSENER. In this case, the penalty will be as agreed upon or, failing that, 0.1% weekly, said penalty being the only possible compensation action due to delay and without ever exceeding 10% of the price.
3.4. Unless in the delay, PROinSENER can be seen liable for fraud or gross negligence, the Buyer may not refuse the supply of the Products or the execution of the Services, suspend the fulfilment of its obligations – especially the payment- nor urge the conclusion of the contractual relationship.
3.5. In case of delay of the Buyer in the collection of the Products, PROinSENER will diligently guard the same, although the risks will be understood as transmitted to the Buyer with the provision, that PROinSENER is not responsible for any damage suffered, except intent or gross negligence The delay will not legitimize the Buyer in any way to delay payments according to the schedule included in the Order, and this must compensate PROinSENER for the expenses that the delay causes.

4. PRICES AND METHODS OF PAYMENT

4.1. The sale prices of the Products and Services shall be those fixed in the Order, or in the contract signed between PROinSENER and the Buyer. All prices are net, without including any type of tax, VAT, right or fee, which shall be subsequently passed on to the invoice with the corresponding rates. In those cases in which the delivery is not INCOTERM Ex Works, and unless otherwise stipulated in writing between the Buyer and PROinSENER, the supply prices will not include the costs of transportation, unloading, insurance or customs, which if contracted by PROinSENER would be for the Buyer’s account and risk, being subject to an additional charge on the sale price.
4.2. As a general rule, the prices included in the Offer prior to an Order will be valid for two (2) weeks, and in this period they will be considered as fixed as long as the rest of the Conditions of the Offer are respected in the Order. If the costs or materials used by PROinSENER for the execution of the Products or the provision of the Services are modified after the date of the Offer made by PROinSENER to the Buyer, and even once the Order has been formulated, PROinSENER may pass on to the Buyer said increases with prior notification. In that case, the Buyer, within seven (7) days after receiving said notification, may proceed to cancel the Order, without any responsibility of any of the Parties towards each other. However, in the event that PROinSENER had already begun manufacturing the Products or the execution of the Services, the Buyer must indemnify PROinSENER for the damages arising from the cancellation. In the event that the Buyer does not reject the increase in the price within the previously indicated period of seven (7) days, the new price will be considered as accepted between the Parties for all purposes.
4.3. PROinSENER will issue an invoice for the Products made available to the Buyer and / or the Services executed therein, where payments will be made in the form and terms established in the corresponding Order. The payment term is strictly enforced. When said period is established in a number of days from the Order, it will be at the date of the first version of this, unless, having undergone the same substantial changes, both parties have established otherwise in writing. If the expiration date set coincides with a Saturday, Sunday or public holiday at the place where the Buyer has his registered office, payment must be made on the last working day immediately preceding said Saturday, Sunday or public holiday. Payment will not be considered effective until PROinSENER has received the amount in full and with funds immediately available.
4.4. The validity of Orders to PROinSENER will be subject to the timeliness and effectiveness of the stipulated payments to be made by the Buyer. The payment term is an essential condition, so if the Buyer fails to comply with any payment obligation, or does not make it on time or in full, PROinSENER will be authorized to suspend any commitment or obligation arising from the Order (with the consequent postponement of the delivery dates) until the Buyer fulfills its obligations, or even to cancel the Order, and all this without prejudice to the right of PROinSENER to collect the damages and losses suffered by the Buyer’s breach, as soon as they exceed of the interests to be paid by the Buyer, in accordance with section 4.6 below.
4.5. The payment conditions must comply with the provisions of Act 15/2010, July 5, which establishes measures to counteract late payment in commercial transactions, without exceeding in any case the maximum terms established therein.
4.6. If the amount owed has not been paid in full on the established payment date, the Buyer shall pay PROinSENER, without any requirement and from the due date of the payment, the corresponding interest for delay, which shall be calculated according to the provisions of the aforementioned Act 15/2010, July 5 and all without prejudice to any other right corresponding to PROinSENER, including the right to recover any judicial and/or extrajudicial costs that may be incurred to retrieve the amounts owed. The payment of these interests shall not release the Buyer from the obligation to make the rest of the payments in the agreed Conditions.
4.7. PROinSENER, expressly reserves the ownership of the goods that shall continue to be its property until the Buyer has verified the full payment of the agreed price. Consequently, the Buyer shall refrain from making any act of assignment by any title, provision or lien with respect to the Products, as well as using or integrating them into any installation, as long as any amount of the price is pending payment. If the Buyer files for bankruptcy file, he will refrain from including the Products in his asset, being the property of PROinSENER. In the case of provision of Services, PROinSENER will have the right of retention in pledge in the case provided for in art. 1,600 of the Civil Code.
4.8. In general, the breach by the Buyer of the terms of an Order will legitimize PROinSENER to stop the ongoing production or delay any delivery of Products or services rendered pending with the Buyer due to other Orders, until it has been remedied the breach.

5. WARRANTY

5.1. PROinSENER guarantees that the Products and Services meet the mutually agreed specifications and that they will be delivered or rendered free of defects. The warranty period will be two (2) years from the delivery of the Products or the provision of Services, as long as the Buyer complies with the Maintenance and Warranty Manual that PROinSENER sends to the customer for that particular supply.
5.2. This limited warranty will not apply to the Products or their components:

- that, at the sole discretion of PROinSENER, they have been repaired or handled by personnel outside PROinSENER without their express prior authorization;
- when the deficiency occurred is due to an accident, misuse, abuse, neglect or natural wear;
- that have been installed, manipulated or used in a manner contrary to the instructions issued by PROinSENER, or that violate the instructions issued by PROinSENER regarding the operation and maintenance;
- or that have been subject to unusual or improper physical or electrical stress, or to environmental conditions that do not meet the requirements set forth in PROinSENER manuals and instructions.
5.3. PROinSENER will not be responsible for the damages caused by third parties, atmospheric discharges, excessive voltage, chemical influences or in-transit losses and damages. The warranty will not cover the replacement of parts subject to natural wear. PROinSENER will not guarantee the sale of used Products. If the Products have been manufactured or the Services provided by PROinSENER have information purposes, designs, drawings, models or other specifications provided by the Buyer, the guarantee of PROinSENER will be restricted to the breach of the Buyer’s specifications.
5.4. The sole obligation of PROinSENER and the Buyer’s sole remedy under the Warranty will be, at PROinSENER’s discretion, either to repair the defective Products (or the defective part of the Products) at the facilities of PROinSENER or to replace them under the conditions of INCOTERM Ex Works, without additional charges. PROinSENER will not assume any cost of transport, stay or maintenance of its own or others due to the repair or replacement of the equipment under warranty.
5.5. The Buyer must show that the faults or defects have arisen exclusively as a direct consequence of errors or lack of due diligence on the part of PROinSENER. PROinSENER must, in accordance with the provisions of these Conditions and during the warranty period, repair the material defect in the Products or in the provision of the Services derived from a defective design, material or workmanship provided by PROinSENER and / or that impair the functioning of the affected Products. Unless otherwise specified by Spanish law, no claims regarding the defects due to deviations or insignificant damages will be address.
5.6. The repair or replacement of a defective item does not change the start date of the warranty period for the supplied Products. The Products – or the parts of these – repaired or replaced, or the re-provided Services will have a guarantee from the date of repair, replacement or provision that will be equal to the remaining warranty period of the defective Product or to the Services initially provided until the deadlines stipulated in these Conditions are met.
5.7. As an exception to the guarantee described above, when the Products delivered have not been manufactured by PROinSENER, it will assigning to the Buyer the guarantees that the corresponding manufacturer would have granted to PROinSENER, not responding that the use of the Products does not infringe any third party intellectual or industrial property right or patent.

6. INDUSTRIAL AND INTELLECTUAL PROPERTY

6.1. Any and all technologies, processes, methods, formulas, designs, specifications, patents, trademarks, copyright, rights over designs, inventions, business secrets, know-how, information involving intellectual and industrial property and any other confidential information (hereinafter, the “Intellectual Property”), whether they have been delivered by PROinSENER to the Buyer to enable the execution of the Order or have been developed with the Buyer’s own participation on the occasion of the execution of the Order, shall at all times remain confidential information and shall be the exclusive property of PROinSENER.
6.2. The Buyer expressly acknowledges and agrees that it will not use the Intellectual Property or any other confidential information received and/or developed in connection with the execution of the Order for any purpose other than strict compliance with the Order. In particular, the Buyer acknowledges and expressly accepts that it shall not use the Intellectual Property to provide any third party with goods and/or services without the prior written authorisation of PROinSENER, and that if this should occur, such unlawful use will imply behaviour that is objectively contrary to the requirements of good commercial faith, an improper use of the efforts of others, and a flagrant violation of industrial/company secrets, as established in articles 11.1, 11.2, and 13 of Law 3/91 on Unfair Competition, and 3 of Law 1/19 on Business Secrets, all without prejudice to any other actions that may assist PROinSENER in law.

7. CONFIDENTIALITY

7.1. In relation to each Offer, any information that may become known to both PROinSENER and the Buyer through any type of means, format or support, including verbal form or by own inspection, directly or indirectly, is considered “confidential information”, and is the property of the Party providing the information. This obligation of confidentiality shall be applicable for a maximum period of five (5) years after the execution or cancellation of the Order, whatever the cause.

8. DATA PROTECTION

8.1. Both Parties undertake to keep in absolute secret of all information about personal data to which they have access in compliance with the Conditions, to supply that information only to authorised personnel, and to observe all the legal provisions of the new European Regulation (EU) 2016/679 of April 2016, and of Organic Law 3/2018 of December 5 of 2018 of Protection of Personal Data and the Guarantee of Digital Rights, with any subsequent modifications.

9. EVIDENT DEFECTS

9.1. Within forty-eight (48) hours following the delivery of the Products, the Buyer shall notify PROinSENER of the existence of evident defects.
9.2. Evident defects or faults refer to the lack of the number of pieces of the Products or defect in the quality of the Services or condition of the Product, which can be appreciated by visual inspection or the slightest control of the delivery of the Products to the Buyer.
9.3. If the claim is not made within the aforementioned period, it shall be understood that the Product have been received in perfect state and condition.

10. RETURN OF PRODUCTOS

10.1. In any case, PROinSENER shall accept returns without prior agreement in respect thereof with the Buyer and before the signing and delivering the authorization document for returns of PROinSENER.

11. RESPONSIBILITY

11.1. PROINSENER’s responsibility for claims derived from the fulfilment or non-fulfilment of its contractual obligations shall not exceed the price of the Product or Service causing the damage or harm, and shall not include in any case the indirect or consequential damage that may occur as a result of the supply, the non-delivery or defective delivery or provision of the Products or Services, indicating, by way of illustration but not limitation, the loss of production or income, loss of profits, costs of stoppages or inactivity, or, in general, losses of any kind that may be suffered by the Buyer, etc.
11.2. Apart from cases of non-conformity of the Products or Services, any claims for damages made by the Buyer are expressly excluded where no gross negligence or wilful misconduct is involved.
11.3. The Buyer will be solely responsible, exonerating PROinSENER, for damages to third parties that result from improper use, storage, preservation or handling of the Products by the latter.
11.4. All responsibility of PROinSENER will end with the expiration of the corresponding guarantee period. However, when before this date the Buyer has notified the initiation of a legal action or arbitration under these Conditions, it may execute the resolution that may be dictated against PROinSENER, but only within the year following the end of this guarantee period.

12. TERMINATION, RESOLUTION AND MODIFICATIONS

12.1. Without prejudice to other resolution rights granted in these Conditions, the existing contractual relationship between the Parties will be terminated immediately and will be effective, upon written notification, in the following cases:
- by a Party, if the other Party substantially violates these Conditions, after a period of thirty (30) business days from the date of the written notification of the breach has elapsed without it being remedied, or automatically, if the correction within that period it is not possible;
- by a Party, upon the initiation of the liquidation of the other Party, or if there is an order or an agreement to proceed to its liquidation, intervention or dissolution, or if it is insolvent (“in insolvency”) in accordance with the article 2 of the Spanish Insolvency Legislation (Law 22/2003, of July 9, Bankruptcy); In all these cases, the part of the price that is pending payment under these Conditions shall expire in advance, and must be paid immediately, unless otherwise agreed by the Parties.

13. COMPENSATION

13.1. The Buyer will exempt from liability and will keep PROinSENER harmless against losses, damages and other costs regardless of its nature (attorneys’ fees and expenses included) that derive from the Buyer’s breach of a clause of these Conditions, or from negligence, malpractice or actions of the Buyer, its partners, administrators, managers, employees or collaborators. The same shall apply to loss, cost or expenses assumed by PROinSENER for claims made by a client of the Buyer, in which said loss, cost or expense exceeds the limits of liability of PROinSENER established in these Conditions, including, without limitation, the provisions relating to the guarantee.

14. FORCE MAJEURE

14.1. If PROinSENER suffers a difficulty or a delay in the fulfillment of the obligations of these Conditions for a case of Force Majeure, its obligations will be suspended while the Force Majeure continues. PROinSENER will notify the Buyer as soon as possible, expressing said cause and its foreseeable duration.
14.2. Force Majeure means any circumstance beyond the control of PROinSENER that prevents, temporarily or permanently, the execution of all or any of the obligations of PROinSENER against the Buyer, regardless of whether or not these circumstances were foreseen at the time of the conclusion of an Order, agreement, contract, etc., including, and without limitation: governmental measures, rejection, revocation or cancellation of permits, business closing, forced closing of all or part of the company, war or threat of war, fire, transportation problems, accident, labor unrest, lack of personnel, embargos, temporary or permanent non-delivery of samples, non-provision of services by third parties without taking into account their cause, defects and/or breakdowns of material, machinery, systems and/or software and hardware, absence or lack of material with which the Products are manufactured.
14.3. When a Force Majeure case substantially alters the economic aspect of an Order or significantly affects the Buyer’s business, the contractual relationship between the Parties will be adapted taking into account the principles of reasonableness and good faith. In the event that PROinSENER considers that said alteration or affectation, or its substantiality, is not duly justified, it may refuse such adaptation and will have the right to resolve the contractual relationship. If PROinSENER wishes to exercise its right of resolution, it must notify the Buyer without delay. All of the above will also apply when an extension of the delivery period has been agreed with the Buyer.
14.4. If the effects of the Force Majeure case extend for a period of more than three (3) months and PROinSENER could not deliver the Product or provide the Service, it may, at its free choice, either extend the delivery period or benefit during the Force Majeure period, or to resolve the contractual relationship.
14.5. In any case of termination of the contractual relationship by Force Majeure, PROinSENER may demand payment for deliveries or partial benefits that have been made, without the Parties being able to claim damages or losses arising from the resolution.

15. APPLICABLE LAW AND JURISDICTION

15.1. These Conditions shall be governed in all cases by the common laws of the Kingdom of Spain, without regard to any reference to another law by its conflict rules. The Parties expressly exclude the application of the Vienna Convention of April 11, 1980, relating to contracts for the international sale of goods.
15.2. For any discrepancies or litigation that may arise between the Parties because of the interpretation, execution and/or compliance with these Conditions, both Parties, excluding the conflict of laws rules and regulations that are applicable and expressly waiving their own jurisdiction, expressly and voluntarily submit to the jurisdiction of the Courts and Tribunals of the city of Seville, also waiving the provisions of Regulation No. 593/2008 of june 17 of the European Parliament and Council on the law applicable to contractual obligations.