(1). The terms and conditions set out below apply to all the offers and sales of new generators, new engines, spare engines, and original spare parts, as well as to the different types of technical services (all of them referred hereinafter as ‘products') provided by ALTERNATIVAS ENERGETICAS MURCIA, S.L. (‘the Supplier'),
(2). Any conflicting terms and conditions specified by the Purchaser that had not been accepted in writing by the Supplier will not be binding, even if the latter has not expressly rejected such terms and conditions.
(3). The data, such as illustrations, drawings, or weight specifications, measurements, performance, or consumption, provided in connection with any offer or sales confirmation will be considered merely approximations, unless the Supplier has specified otherwise in writing. The Supplier does not guarantee the characteristics of the products in terms of operation, consumption, or useful life, unless it has been expressly and explicitly specified in the offer or order confirmation. In case this has been expressly and explicitly specified, the rights and claims will be restricted to the terms described in sections IX and XI below.
(4). Any information, such as drawings and other documents, that might have been provided to the Purchaser shall be treated confidentially, unless such information had been already published or it can be proven that it was in the Purchaser's possession before its receipt, and the Purchaser may only use it for the agreed purpose.
(1). The Supplier's written order confirmation will be considered final when establishing the contractual provisions between the Supplier and the Purchaser, including the scope of supply and/or services agreed. Nevertheless, if the Supplier issues an offer that is valid for a specific time and the Purchaser accepts such offer within such period and as specified by the Supplier, or if any other separate contract is signed by both parties, the offer will be considered final when establishing the contractual provisions between the Supplier and the Purchaser. The scope of supply is restricted to the products and/or services expressly specified in the contract.
(2). The Supplier may make technical changes to the products, unless they constitute a deviation in the agreed specifications or they affect the functional qualities or shape in a significant way for the Purchaser.
(3). Unless there is a specific written agreement, the services related to the installation and/or commissioning of the products, regardless of whether they are going to be installed in industrial premises or anywhere else, are not included in the scope of supply.
(1). Unless otherwise agreed in writing, all the estimated prices are for Incoterms EXW delivery by the Supplier, including loading at the factory, but they do not include taxes and packaging.
(1). Unless otherwise agreed in writing, the Purchaser shall pay the full purchase price, without deductions or charges, into the Supplier's account within the 10 days following the date of acceptance of the offer or the order confirmation date. The payment will not be considered completed until the Supplier's bank account has received the full amount of the sale.
(2). The Purchaser may not reject the payment or deduct any amount on the account of any claim in dispute the Purchaser might have against the Supplier, unless the Supplier agrees so in writing or a judge has ruled so and the Supplier is not entitled to appeal.
(3). In the event the Purchaser fails to make any payment of the purchase price (or any instalment of the purchase price in case the Supplier has accepted to be paid in instalments), or in case of any other Purchaser's non-compliance, breach, or neglect of the contract or any other contract with the Supplier, or if the Purchaser becomes insolvent or makes any allocation to creditors, or if any bankruptcy, insolvency, restructuring, or arrangement proceedings are initiated by or brought against the Purchaser, the Supplier may, in its discretion, cancel the contract or any part thereof, as well as any other contracts with the Purchaser, the Purchaser being liable for damages. The Supplier's rights described in section VII will remain in force and the Purchaser shall pay an annual 12% interest. The Supplier's rights to claim additional damages will remain unaltered.
(4). If payment in instalments is agreed and the Purchaser falls behind with the payment of one of the instalments, all the unpaid instalments as at that date will become defaults that must be paid immediately.
(1). Unless otherwise agreed in writing in the Supplier's offer or order confirmation, the delivery term will start on the date on which the payment corresponding to the purchase is received in the Supplier's bank account, but not before the Purchaser has submitted the documents, permits, authorisations, and other details it must submit, always provided the agreed sales conditions are met.
(2). The delivery will be considered made in time if the products to be delivered have been shipped, or if their availability to be shipped has been notified to the Purchaser before the delivery date (FCA Incoterms 2010). Should the delivery be postponed at the request of the Purchaser, the latter shall pay the expenses derived from storage, starting from 15 days after the Supplier has sent the notice that the products are ready to be shipped. If the Purchaser's delay exceeds 30 days following the notice that they are ready to be shipped, the Supplier will be entitled to consider such delay a contract breach and to exercise all the rights derived from such breach, including the right to cancel the contract and request damages.
(3). The delivery term may be reasonably extended in case of a delay caused by force majeure, such as a labour conflict, a strike, accidents, earthquakes, fire, or any event beyond the Supplier's control, including the fact that any supplier of the Supplier fails to deliver their order in time. The delivery term may be extended for the reasons specified above, even if the Supplier is already delayed at the time of occurrence of such events. The Supplier will inform the Purchaser as soon as possible about the start and the end of those delays.
(4). Should the Purchaser sustain any damage as a result of a delay for which the Supplier is responsible due to any kind of negligence, the Purchaser, excluding any other Purchaser's claim or right in case of delay, except for the Purchaser's rights set out in section XI herein, is entitled to a payment for damages of 0.5% of the EXW price of the product or part delayed per each full week of delay, although this will not exceed an overall amount of 5% of the purchase price of the products that, due to the delay, had not been delivered within the term required by the contract or in time to be used by the Purchaser, whichever the latter date may be.
(5). The Supplier's obligation to deliver the products in time is subject to the Purchaser's compliance with all its contractual obligations.
(1). The risk of loss will pass to the Purchaser according to the Incoterms EXW conditions (Incoterms 2010 edition).
(2). In case of delay in the shipment, the Purchaser being responsible therefor, the risk of loss will pass to the Purchaser on the date on which the products are ready to be shipped.
(3). The Purchaser shall allow and accept partial shipments.
(1). Until all the amounts owed by the Purchaser to the Supplier by virtue of the contract or any other contract between the Supplier and the Purchaser had been fully collected by the Supplier, the latter will retain the title to the supplied products, and the Purchaser grants the Supplier the retention of title to the products until the Purchaser has fulfilled all its obligations with respect to the Supplier under this contract or other contracts, including the removal of the products the Purchaser will be bound to deliver. All the removal and return expenses will be borne by the Purchaser. In case of any third-party intervention, the Purchaser will notify it in writing to the Supplier and will adopt all the necessary measures to protect the Supplier's rights, being at all times liable vis-a-vis the Supplier for any action carried out by the third party.
(2). The Purchaser will be entitled to resell the products in the ordinary course of business. In addition to the rights specified in Section VII. (1), the Purchaser hereby assigns to the Supplier all the receivables and rights the Purchaser may have with respect to its customers or third parties concerning matters on resale, installation in equipment, or vehicles sold by the Purchaser, regardless of whether the products had been already resold before or after a subsequent processing or readjustment. Notwithstanding such assignment, the Purchaser will be entitled to collect such receivables until the moment in which the Supplier has notified the Purchaser that it intends to collect such receivables itself. The Supplier undertakes not to collect such receivables insofar as the Purchaser duly meets its payment obligations with respect to the Supplier. At the Supplier's request, the Purchaser will inform the Supplier about the amounts of the assigned receivables and their respective debtors, it will send the information required for the collection of such receivables, it will provide it with all the relevant documents, and it will inform the debtors about the assignment.
In case the products supplied by the Supplier are resold by the Purchaser along with other products not supplied by the Supplier, the trade receivable will be considered assigned proportionally to the price the Purchaser must pay to the Supplier of the products.
(3). At the Purchaser's written request, the Supplier will release its title, guarantee right, and taxes on the products and the money earned with them [including the receivables specified in Section VII. (2)] insofar as the Supplier determines that the value of those products and benefits exceeds the obligations not paid by the Purchaser to the Supplier in more than 20%.
(1). The Purchaser will act in accordance with the information and/or technical manuals provided by the Supplier.
(2). Should the Purchaser not perform an installation or operation of the equipment in accordance with the information provided by the Supplier, or allows its client to operate in this sense, the Purchaser will immediately remedy the problem at its own cost.
(3). If the contract includes installation by the Supplier, the latter will not be requested to start such installation until all the previous operations for which the Purchaser is responsible had been completed.
(4). In case the transport, installation, or operation of the products is delayed or interrupted, or the operators cannot work due to reasons beyond the Supplier's control, the Purchaser will pay all the additional costs and damages caused by such delay or interruption. None of these delays or interruptions will affect the Purchaser's obligation to meet the agreed payment terms.
(1). In the event of faulty products, including their inability to reach the performance characteristics expressly guaranteed, the Supplier's guarantee, excluding any other Purchaser's rights or claims and the rights set out in Section XI, will be the following:
(2). The guarantee period for generators and other components thereof is ‘one year or 2,000 operating hours', whichever comes first, always starting from their commissioning or, maximum, one year after the date of delivery to the Purchaser.
By mutual agreement between the Purchaser and the Supplier, the guarantee may be changed. However, it shall always be recorded in writing in the order, in the acceptance thereof, or in a separate document signed by the Supplier and the Purchaser.
(3). The Supplier, at its own cost and discretion, will change, replace, or repair the part of the products whose fault has been proven by the Purchaser in writing during the twelve-month period.
(4). Likewise, the Supplier, at its own cost and discretion, may authorise the Purchaser or third parties to repair breakdowns or faults that may come up during the guarantee period.
(5). REPAIRS: The guarantee period for repairs is 6 MONTHS or 500 operating hours (whichever comes first), starting from the date the Suppliers issues the invoice to the Purchaser. The guarantee is limited to the components subject matter of the repairs and does not cover other damage not related thereto.
(6). The original guarantee period of the products will not be extended as a result of any repair or replacement thereof.
(7). The guarantee specified in Section IX is subject to the Purchaser's written notification to the Supplier of a potential fault within 10 working days from the detection thereof and within the guarantee period specified in Section IX.
(8). The Purchaser will give the Supplier a reasonable period and the opportunity to perform the necessary repairs and replacements pursuant to Section IX, refraining from attempting to repair the potential fault without the Supplier's prior written consent.
(9). Any claim or action against the Supplier based on an alleged fault or deficiency in the supplied products will lapse if the Purchaser does not lodge or bring it within the six-month period starting from the date on which it notified it, always in accordance with Section IX, or as soon as possible before the expiration date of the guarantee period.
(10). Any Supplier's product guarantee or liability is held harmless from faults or damage resulting from the following: improper or faulty installation or assembly; and/or improper, inadequate, or negligent use and/or operation; and/or lack of proper maintenance of the products by the Purchaser or third parties; installation of the products without observing the Supplier's instructions; improper or negligent handling of the product; use of inappropriate accessories; use of spare parts that are not the Supplier's original parts; or chemical, electro-chemical or electrical influences. Likewise, the Supplier will not be liable either for faults, deficiencies or damage resulting from the normal wear and tear, and/or alterations or repairs performed by the Purchaser or third parties without the Supplier's prior written consent, in accordance with Section IX.
(11). The Supplier will not be liable or have any obligation vis-à-vis anyone with respect to faulty or defective products, including claims lodged by a Purchaser's customer, except for the obligations provided by this section IX. This guarantee overrides all the other guarantees, whether express or implicit, including the marketability and adjustment guarantees for a specific purpose. It is expressly agreed that the Supplier will not be, under any circumstance, liable vis-a-vis anyone for any type of damage, whether compensatory, incidental, consequential, special, indirect, or punitive, derived from any cause, including, without limitation, blackouts, inoperability of the supplied products, loss of profit, or property damage other than those corresponding to the supplied products.
(1). Should the Supplier, due to any degree of negligence, breach its ancillary contractual obligations, such as wrong user's manuals or instructions for installation, and as a result of this incident the products are affected or cannot be properly used, the Purchaser will be entitled to exercise the rights expressed in section IX herein.
(1). In the event that, before shipping and passing the risk of loss of the products to the Purchaser, the Supplier acknowledges in writing that it will not be possible to substantially meet its contractual obligations, the Purchaser may cancel the order under the terms described in section V(4), but it will only be entitled to exercise its right to cancellation if the Purchaser has granted to the Supplier a reasonable grace period for the delivery by means of written note expressly specifying that the Purchaser will refuse to accept the products after the grace period has elapsed. Likewise, the Purchaser will be entitled to terminate the contract with respect to any product delivered if the Supplier does not undertake to carry out critical repairs or replace an essential component, according to Section IX, within a reasonable grace period granted by the Purchaser to the Supplier.
(2). In case of exercising such termination right, the Purchaser will be entitled to be reimbursed the part of the purchase price it may have paid for such products, and the Purchaser will have no further right vis-a-vis the Supplier with respect to the products or the sales order thereof.
(3). There will be no right to cancellation, according to Section XI. (1), if the Supplier's inability to fulfil its contractual obligations is totally or partially caused by the Purchaser. In this case, the Purchaser shall pay the full purchase price, applying the terms contained in section V (3) regarding force majeure causes.
(1). If any event specified in Section IV. (3) causes a significant change in the Supplier's economic consequences of executing the order, or seriously affects the Supplier's commercial activities, the parties shall modify by mutual agreement the order as far as required in order to reinstate the Supplier to the financial position in which it would be had that event not happened. If such modification cannot be made, the Supplier may cancel the order if it deems it convenient. Following such cancellation, the Supplier will reimburse the Purchaser for the part of the purchase price the Purchaser may have paid for the non-shipped products, and the latter will not have any other right against the Supplier with respect to such cancellation. In particular, the Purchaser will not be entitled to claim damages for such cancellation.
(2). If the Supplier intends to exercise this right to cancellation, it shall communicate it immediately to the Purchaser after assessing the effects of the event, even if the Supplier had previously agreed with the Purchaser an extension of the delivery period.
(1). The Supplier processes personal data in the context of the commercial relationship pursuant to the European requirements on data protection.
You may find more information on data protection here: https://www.aemspain.com/generator-set/legal-notice.html
(1). In case any provision in the order between the Supplier and the Purchaser, including these terms, becomes void, the rest of the order will not be affected. Any change or appendix to the terms and conditions of this contract must be in writing and signed by both parties to be valid.
(1). All the disputes and disagreements that may arise from or in connection with this Contract or from a breach thereof which cannot be solved amicably between the PARTIES will be forever finally solved, excluding any other jurisdiction in compliance with the award, by arbitration pursuant to the Conciliation and Arbitration Regulation of the Chamber of Commerce and Industry of MURCIA currently valid from time to time, through an arbitration board made up by an arbitrator for each party and a casting arbitrator; each party will designate their arbitrator and the casting arbitrator will be designated by the arbitrators designated by the parties. In case any of the parties fails to designate their arbitrator, the latter will be designated by the Chairman of the Chamber of Commerce and Industry of MURCIA. Should the designated arbitrators do not agree on the casting arbitrator, the latter will be designated by the Chairman of the Chamber of Commerce and Industry of MURCIA.
(2). The place of the arbitration proceedings will be MURCIA, Spain. The language of the arbitration will be Spanish. All the related matters will be governed and construed according to the Spanish laws. In any case, the terms of this Contract shall prevail.
JANUARY 2023 VERSION