I. General Provisions
- The sale, supply and/or erection by INCRO, S.A. (hereinafter INCRO) of products, plants, equipment or components are subject to the conditions set out in these General Sales Conditions (hereinafter GSC).
- Any other prior or subsequent conditions have no value if they have not been expressly agreed in writing and accepted previously by INCRO and the CLIENT.
- If one or more provisions contained in these conditions were determined to be invalid or rendered unenforceable, the remaining provisions shall continue to be valid and the affected clauses shall be changed in a way that will properly reflect the joint intentions of the Parties.
- It is considered that these GSC have been communicated to the CLIENT from the time he receives an offer.
- All references to products, brochures, leaflets and technical literature and, technical specifications are indicative and not binding, unless and until signed and/or Annexed to the Contract.
- INCRO reserves itself the right, upon previous notice to the CLIENT, to modify any technical specifications in order to ensure continual updating of its technology; provided that this does not derogate of its undertaking and of the performance of the equipment supplied.
II. Formalizing of purchase orders (PO)
- To consider a PO as effective, the CLIENT shall send the accepted and signed PO to INCRO, and receive afterwards the written acceptance by INCRO.
- The content of the PO will be defined in “Scope of Supply”, excluding anything that is not explicitly stated in the aforementioned clause.
- Any modification and / or variation of the PO (scope, timing or terms) must be notified in writing and confirmed in writing by both parties.
- The order will be adequate against unforeseeable events that alter significantly the content
- Unless provided for differently in the PO, all prices of the PO are net prices, placed the equipment on the store of INCRO (EXW INCRO), and excluding packing, shipping or insurance. Taxes are not considered on that prices.
- If nothing is written against the validity of the offered prices, it shall be 30 calendar days.
- Once accepted the PO, prices will be fixed. Prices are specified in Euros.
- Payments should be made in the terms and conditions agreed without any discounts or rebates on them.
- Checks or promissory notes are accepted as payment if previously has been accepted in written by the parties. The existing debt will be canceled once the corresponding recovery had occurred. The expenses incurred by negotiation or collection of the payment shall be borne by the issuer.
- Prices may be amended only in the following cases :
- If payment terms are changed by mutual written and signed agreement between the Parties.
- If there is a written agreement between INCRO and CLIENT.
- If there is a request from the CLIENT modifying the Scope of Delivery or delay in delivery terms, subject to mutual written and signed agreement between the Parties.
IV. Terms and Conditions of Payment
- Payment terms will be defined in the PO, or in default it should occur fifteen (15) days from invoice date.
- In the event that a delay in delivery due to causes beyond INCRO is given, terms and conditions agreed will remain. In case of a claim by the CLIENT, this does not generate the right to require any modification of committed payments.
- In the event of late payment by the CLIENT, INCRO may require payment of default interest at the yearly rate of Euribor +5%.
- In case the coverage of credit is denied to the CLIENT or the bank information makes the financing unfeasible, INCRO reserves the right to require full payment of the PO or additional guarantees or to cancel the PO order.
In the event of any outstanding orders or delivery processes, INCRO reserves the right in such cases to require prepayment thereof or additional guarantees, all without incurring arrears.
- The CLIENT shall be deemed to be in default if he had not made the payment after 30 days after the invoice date.
V. Terms and Conditions of Supply
- The delivery period begins with the written confirmation of the PO and ends within the period specified therein.
- Compliance with delivery time will depend on the timely submission by the CLIENT of all required permits and authorizations, payment or payment guarantee, the construction of the required infrastructure, electricity and water supply free of charge, or required auxiliary staff. In case of default by the CLIENT, the delivery date will be postponed accordingly, without incurring INCRO in overdue.
If failure of delivery or of obligations by INCRO or by its subcontractors is due to force majeure, labor disputes or other events beyond its control, the delivery time may be extended accordingly. The beginning and end of this situation will be communicated to the CLIENT as soon as possible. If the fulfilment of INCRO obligations becomes impossible or extremely unreasonable, the possibility that INCRO may cancel the contract is contemplated, and the CLIENT has the same right, if the execution of the PO becomes impossible or extremely unreasonable.
- In the event that the CLIENT delays the delivery date, he must assume the expenses incurred by INCRO in his workshop for storage and handling of the equipment.
- In case that no delivery time is defined, INCRO may deliver and invoice 6 months after PO confirmation.
- The dates for delivery will be defined in the PO or in default are considered fulfilled in the time when the order is ready for factory output within the agreed period, or if we inform that the order cannot be delivered for reasons beyond our control.
- Inspections and testing during production and pre-delivery inspection will be performed by INCRO. Any additional testing required by the CLIENT shall be paid by them.
- Any deficiencies in the delivery must be visually checked at the reception of the equipment, and shall be communicated in writing to INCRO in the next 24 hours.
- The faults and defects attributable to INCRO (manifest defects) must be notified in writing by the Client within a period of fifteen (15) days from the delivery or installation of the equipment, and will be repaired by INCRO. The period to declare hidden defects shall be fifteen (15) days from the time the CLIENT become aware of them.
VI. Pick Up/Reception
- If the pick-up/reception is contained in the Agreement, it shall be occur immediately after availability notification by INCRO.
- If it is required due to conditions of the equipment to be delivered, the client is obliged to receipt the equipment. This rule also applies for partial supplies and/or services.
- If the pick-up/reception occurs late or partially, and it is not attributable to INCRO, the equipment will be considered as delivered from 10th working day on after the date of communication of availability for pick-up/reception.
- The equipment will be considered picked-up by the client if they proceed with the implementation of the equipment without our approval.
- The client must meet the requirements for pick-up/reception of the equipment. With the exception of personnel costs, the client will assume all costs and expenses associated with the purchase.
- Client may not refuse acceptance of the equipment due to minor damages, without prejudice to its rights contained in Section VIII.
VII. Installation (Erection) and Commissioning
- If it is agreed that INCRO shall perform the installation (erection) and commissioning of the equipment or plant, the client is obliged to provide the necessary technical support, perform the construction work required from it, provide water and energy supply needed, provide the appropriate workspace and storage, as well as telephone or data connection required. INCRO shall give the CLIENT written instructions in advance of all such requirements.
- The CLIENT is responsible for the necessary measures relating to protection of human health and safety at the workplace.
- Depending on CLIENT requirements, all points necessary for proper installation and commissioning shall be defined in the PO under section “To be supplied by the client”.
- All limits of supply shall be defined in the PO under section “Limits of supply”.
- The compliance by INCRO for deadline commissioning depends on the CLIENT compliance with its obligations. This milestone will be considered fulfilled if the equipment or plant provided by INCRO is ready for commissioning before deadline.
VIII. Warranty, defects and hidden defects
- INCRO guarantees all products included in the PO for a period of twelve (12) months from the date of delivery
- Damages or defects due to normal wear and use of equipment or plant are excluded from the warranty. Also excluded from the warranty are damages and defects caused by improper preservation or maintenance by the CLIENT, faulty storage or negligent handling, incorrect assembly by the CLIENT, misuse, use of inadequate liquids or gases, variations in power quality (voltage, disturbances, frequency, …) and changes introduced in plant or equipment not expressly approved by INCRO and in general, any cause not attributable to INCRO.
- The warranties specified in this section refers to the usual legal warranty against defects. An additional warranty must be agreed separately in writing.
- The indications in the operation and maintenance manual are mandatory to prevent premature wear.
- Incompliance with contractually defined specifications and quality tolerances accepted as usual in the industry shall not be considered material defects.
- The CLIENT will be responsible in front of INCRO for the provision of correct information as requested by INCRO, and that it does not violate data protection rights of third parties. INCRO declines all responsibility if defects arise from incomplete information have provided by the CLIENT.
- Repair or replacement of an item as collateral does not change the initial warranty period. The repaired or replaced item will be warranted for 12 months.
IX. Intellectual property
- The intellectual property and copyright on the documents produced by INCRO is maintained by INCRO. Documents may only be provided to third parties with the written consent of INCRO, and must be returned to INCRO immediately after not awarding the contract.
- Equipment or plant will be delivered to the end user without protection of intellectual and industrial property. INCRO will not accept any responsibility if the CLIENT or end user introduces an application other than that specified in the technical bid, or if any modifications would occur within the equipment or plant not approved in writing by INCRO, or if the client uses products not supplied by INCRO.
- If a third party claims for the violation of protection of intellectual property, the CLIENT should inform INCRO in writing without delay, so that INCRO has the possibility to evaluate the legal actions to arrange. In case the claim is justified, INCRO reserves the right to terminate the claim in the most convenient way according to Law.
- The payment of the PO does not entitle thereof the intellectual property of the products or ideas object of sale, that shall remain by INCRO.
X. Reservation of Right of Legal Ownership
- All equipment and components are supplied under retention of title in favor of INCRO. Until full compliance with its contractual payment obligations, the CLIENT shall adopt the necessary actions to safeguard INCRO right of ownership on such equipment and components. INCRO will retain ownership of the products sold until full payment of the Price by the CLIENT.
- Meanwhile, the CLIENT cannot sell, or in any way dispose of the equipment without written authorization of INCRO. If the CLIENT wishes to acquire industrial or intellectual property, and this requires compliance with special requirements or formalities in the CLIENT’s country, all the generated costs will be assumed by the CLIENT.
- If the property of INCRO in the delivered goods or its surrogate perishes, then the client assigns to INCRO its claims and future claims against a third party, which arises from the loss of INCRO’s property, in the amount of the value of the perished property to secure INCRO’s claims (see section X, 1.). The CLIENT is obliged to inform INCRO immediately in case of failure of a third party and to carry out all measures which are necessary for the existence and the legal enforceability of the claim against third parties. In the case of default of the third party, INCRO has the right to collect claims in its own name.
- As long as the Reservation of right of legal ownership exists, the client is required to sign a damage insurance policy during the period in which the deal is still in force. Is mandatory to declare INCRO as beneficiary of the policy. The client herewith irrevocably assigns to INCRO all claims from the respective insurance contracts, until complete fulfilment of its obligations. If no such an insurance policy is subscribed, INCRO reserves the right to hire a policy according to the risk coverage needed and its cost should be assumed by the client, provided that INCRO is entitled to the rights from the insurance policies.
- As long as the reservation of right of legal ownership exists, the CLIENT has the liability to preserve the equipment’s in the best conditions, in accordance with the written instructions of INCRO. As long as the reservation of right of legal ownership exists, INCRO reserves the right at any time to access to the facility where the equipment’s are installed, subject to prior coordination with the CLIENT.
- As long as the reservation of right of legal ownership exists, and in the case of a claim, execution or seizure, the client is obliged to refer the property to the supplier.
XI. Software License
- Software included with the equipment includes an end user license agreement (EULA).
- INCRO provides the CLIENT a software license, which entitles him to use the software and make backups of the databases. While not specified in the contract, the modification of parameters is not allowed.
- The CLIENT license does not allow the copying and/or distribution of the software, either fully or in part, without the express written consent of INCRO.
- The CLIENT license does not allow the use of the software on another computer or plant different to the applied in the order.
XII. Force Majeure
- If INCRO is prevented, in whole or in part, to fulfill its contractual obligations by Force Majeure, the compliance with the liabilities of the contract can be suspended for a reasonably timeframe according to the situation and without any liability for INCRO.
- By Force Majeure means any cause or circumstance beyond the reasonable control of INCRO, including but not limited to, strikes of suppliers, transport and services failures, failure of deliveries by third parties, failure of transport systems, natural disasters, floods, riots, labor disputes, strikes in INCRO or its subcontractors, sabotage acts, omissions or interventions of any Government or Agency thereof (other than legal and regulatory requirements) and other causes of Force Mayor referred to in the legislation, directly or indirectly affecting INCRO activities.
- When a cause of Force Majeure arises, INCRO shall notify the CLIENT as soon as possible, stating the cause of Force Majeure and expected duration. INCRO shall notify as well the cessation of the cause, specifying the timeframe in which INCRO will comply with the suspended obligations. In case of an event of Force Majeure, INCRO has the right to extend reasonably the delivery time.
- If the Force Majeure situation exceeds a three (3) month period, the Parties shall consult to seek a fair and appropriate solution to the current circumstances. If it does not succeed within thirty (30) days, each Party may terminate the PO by written notice to the other Party and without liability on its part.
- After notification of readiness for dispatch at the agreed place and in the agreed time, the risk of the equipment’s move to the client. This clause shall also apply to partial deliveries or services or if we have undertaken other services such as for example shipping costs, installation and assembly.
- Responsibility for INCRO, its agents, employees, subcontractors and suppliers for claims arising from the performance or breach of its contractual obligations, shall not exceed in aggregate 10 % of the total price of the order and in any case does not include damages resulting from lost profits and loss of income, production or use, capital costs, downtime costs, delays and client complaints, replacement energy costs, loss of anticipated savings, increased operating costs and any special damages, direct or indirect, or losses of any kind.
- The limitation of liability contained in this clause shall prevail over any other contained in any other contractual document that is contradictory or inconsistent therewith.
- INCRO liability is limited to the provisions contained in these General Sales Conditions. However, this limitation of liability shall not apply in cases of intent or gross negligence, liability in accidents, hidden defects or non-compliance with contractual obligations.
- Either Party may terminate the Contract immediately by notice in writing to the other Party if the other party breaches, substantially, the Contract.
- No breach of the Contract will be considered substantial unless the defaulting Party has been notified in advance in writing of the circumstance which results in a breach of the Contract and has not remedied the breach within a period of thirty (30) days after notification.
- Other reasons for termination :
- The persistence of an event of Force Majeure or suspension for more than three (3) months from the date of receipt by one Party of the first written communication sent by the affected, as referred in Part XII.
- Any other cause for termination specifically mentioned in other clauses of these GSC or the PO.
- In the event of termination due to reasons attributable to INCRO, the CLIENT shall be entitled to compensation for the damages suffered as a result of breach of INCRO, subject to the limits in Section XIII of these GSC.
- In the event of termination for cause/s attributable/s to the CLIENT, INCRO is entitled to receive:
- The amount of equipment and materials pending of delivery.
- The amount of cancellation of orders issued by INCRO to its suppliers and / or subcontractors, if such cancellation is possible.
- A compensation for other damages suffered as a result of a breach attributable to the CLIENT.
XV. Jurisdiction and Applicable Law
- These GSC as well as the signed Contracts shall be interpreted and governed in accordance with Spanish law.
- The parties expressly waive any other jurisdiction that may correspond to them, and subjected to the jurisdiction of the Courts of Madrid (Spain).