General terms and sales conditions

1. DEFINITIONS
1.1 For the purposes of the interpretation of this contract, we mean:
SELLER: KINEXTEC IBERICA S.L.
BUYER / CUSTOMER: the Party that placed to KINEXTEC IBERICA S.L. a Purchase Order.
ORDER: the document containing the product purchase request, complete with quantity, price, and delivery terms. PRODUCTS: the goods and / or services that are provided by the Seller to the Customer.

2. SCOPE OF APPLICATION
2.1 These General Conditions govern all supply relationships between the parts. Even in the case of exceptions agreed in writing, these conditions will continue to apply for the parts not expressly waived.
2.2 Any general purchase conditions drawn up by the Buyer will not be applied in the relations between the parts unless expressly accepted in writing by KINEXTEC IBERICA S.L. and in any case they will not invalidate the effectiveness of these General Conditions, with which they must be coordinated.
2.3 KINEXTEC IBERICA S.L. reserves the right to add, modify or delete any provision of these General Conditions of Sale, it being understood that such additions, modifications or cancellations will apply to all Sales concluded starting from the signature of the new Terms of Sale.

3. CONCLUSION OF THE CONTRACT
3.1 The Customer must send KINEXTEC IBERICA S.L. specific Orders containing the description of the Products, the quantity requested, the price and the terms required for delivery.
3.2 The Sale shall be deemed entered:
a. when the Customer receives a written confirmation from KINEXTEC IBERICA S.L. (this confirmation can be sent by e-mail, fax or electronic means) in accordance with the Order’s terms and conditions;
b. or, in the event that the Customer receives a written confirmation from KINEXTEC IBERICA S.L. containing terms that differ from those contained in the Order and does not present to KINEXTEC IBERICA S.L. a written complaint within two working days from the date of receipt of the confirmation containing different terms or,
c. in the absence of written confirmation from KINEXTEC IBERICA S.L., when the Products are delivered to the Customer.
3.3 Orders regularly accepted by KINEXTEC IBERICA S.L. cannot be modified or canceled by the Customer without the written consent of KINEXTEC IBERICA S.L. In this case, the Seller reserves the right to impose a fee for the modification or cancellation of said Order.
3.4 The acceptance by the Buyer of the offer or the confirmation of the order by KINEXTEC IBERICA S.L., in any way carried out, entails the application of these General Conditions of Sale.
3.5 Offers made by agents, representatives, and commercial auxiliaries of KINEXTEC IBERICA S.L. are not binding for the Seller until they are confirmed in writing by KINEXTEC IBERICA S.L.
3.6 The sales offers made by KINEXTEC IBERICA S.L. are valid for 30 days from the formulation of the same and limited to the full supply of what is listed therein. Once the aforementioned term has elapsed, the sale offer will no longer be valid.
3.7 The sales offers do not in any case include: the supply of manuals, training courses, start-up assistance and other similar services, unless these services are expressly included in the offer itself.

4. PRICES
4.1 The prices of the products refer to the price list in force at the time of the acceptance of the sale’s offer by the Buyer or the issue of the order confirmation by KINEXTEC IBERICA S.L.
4.2 If the Product is not included in the price list or the price list is not available, the prices will be those indicated in the Order and confirmed in writing by KINEXTEC IBERICA S.L. at the time of order acceptance.
4.3 Except as otherwise agreed in writing between Seller and Buyer, the aforementioned prices will be calculated EX WORKSs, net of VAT and discounts. These prices do not include the costs of packaging, shipping and transport from KINEXTEC IBERICA S.L.’s premises to those of the Customer. These costs must be borne separately by the Customer.
4.4 KINEXTEC IBERICA S.L. reserves the right to modify the current price list at any time, upon written notice to the Buyer, in the event that there is an increase in the cost of raw materials, labor or any other factor that determines an increase relevant production costs. These changes will apply to all orders received and / or confirmed, offers and purchase orders from the Buyer.

5. PAYMENTS
5.1 Payments must be made in accordance with the relevant indications contained in the sales offer or in the order confirmation.
5.2 Unless otherwise agreed in writing between the parts, KINEXTEC IBERICA S.L. will issue invoices upon acceptance of the Order or delivery of the Products.
5.3 Payments and any other sum due for any reason to KINEXTEC IBERICA S.L. must be made at the domicile of the same. Any payments made to agents, representatives, or commercial auxiliaries of KINEXTEC IBERICA S.L. they are not considered carried out, and therefore do not release the buyer from his obligation, until the relative sums are received by the same.
5.4 Unless otherwise agreed, payments will be made in Euros. Prices expressed in currencies other than the Euro may undergo variations in relation to fluctuations in the relative exchange rate.
5.5 Any delay or irregularity in payments attributes to KINEXTEC IBERICA S.L. the right to:
a) suspend delivery of the Products and terminate each single sale signed. This hypothesis will not give the Customer the right to claim any compensation for damage;
b) suspend supplies in progress, even if not related to the payment in question;
c) vary the methods of payment and discount for subsequent supplies, also requiring advance payment or the issuance of additional guarantees;
d) request, starting from the payment’s due date and without the need for formal notice, the default interest on the amount still due to the extent of the rate established by the law currently in force for commercial transactions (in particular “Law 3/2004, of December 29, 2004, which establishes measures to combat late payment in commercial transactions”, and subsequent additions),
without prejudice in any case to the right of KINEXTEC IBERICA S.L. to ask for compensation for the greater damage suffered.
5.6 In the aforementioned cases, any sum due for any reason to KINEXTEC IBERICA S.L. becomes due immediately. The Purchaser will be required to pay in full for the products even in the event of exceptions, disputes or disputes that will be defined only after the payment of the amount due. The buyer renounces in advance to request compensation with any credits, however originated, against KINEXTEC IBERICA S.L.

6. TAXES
6.1 All taxes, duties or other charges of a similar nature applied to the Seller or which the Seller is obliged to collect in connection with the sale, supply, delivery or use of the Products shall be included in the invoice itemized, and the Customer will be required to pay them.
6.2 If the Customer is exempt from such taxes, the latter will be responsible for presenting the respective exemption certificate to the Seller, clarifying (at the Seller’s discretion) the reasons for the exemption in full.

7. RETENTION OF TITLE
7.1 The delivered products remain the property of KINEXTEC IBERICA S.L. until the moment of complete payment.
7.2 The retention of the ownership rights will have no effect on the Transfer of Risk pursuant to the following art. 9.

8. TERMS OF DELIVERY AND TRANSPORT
8.1 Delivery shall take place within the deadline indicated in the Order Confirmation.
8.2 The delivery terms, to be calculated in working days, are indicative and are not essential terms pursuant to art. 1457 of the Civil Code and, in any case, do not include transport times.
8.3 KINEXTEC IBERICA S.L. will not be held responsible for delays or failure to deliver due to circumstances beyond its control, such as merely by way of example and without claiming to be exhaustive:
i) inadequate technical data or inaccuracies or delays of the Customer in the transmission to KINEXTEC IBERICA S.L. of information or data necessary for the shipment of the Products;
ii) difficulty in obtaining supplies of raw materials;
iii) problems related to production or order planning;
iv) partial or total strikes, power failures, natural disasters, measures imposed by public authorities, difficulties in transportation, force majeure, riots, terrorist attacks and all other causes of force majeure;
v) refusal of any government or other competent authority to grant the required import or export licenses or any other authorization, certification or approval.
vi) delays by the forwarder.
8.4 The occurrence of some of the events listed above will not entitle the Customer to request compensation for any damages or compensation of any kind.
8.5 If, for reasons not attributable to KINEXTEC IBERICA S.L., the Purchaser or the carrier designated by it fails to take delivery of the products, KINEXTEC IBERICA S.L. upon notice to the Purchaser, may store them by charging the latter all related costs sustained.
8.6 Failure to deliver will be notified within the shortest possible time.
8.7 On the quantities delivered, the Purchaser acknowledges KINEXTEC IBERICA S.L. the tolerances of use.
8.8 The Seller reserves the right to make partial deliveries or partial supply of Products unless otherwise indicated.
8.9 Except as otherwise agreed in writing between the parts, the transport will always take place at the expense and risk of the Customer. If KINEXTEC IBERICA S.L. is asked to arrange the transport of the Products and in the absence of specific instructions from the Customer, KINEXTEC IBERICA S.L. will choose the means of transport at its sole discretion.

9. TRANSFER OF RISK
9.1 Except as otherwise agreed in writing between the parts, KINEXTEC IBERICA S.L. will deliver the FCA products to its own establishments (INCOTERMS 2010).

10. TECHNICAL STANDARDS AND RESPONSIBILITIES
10.1 The weights, dimensions, prices, yields, colors, and other data related to the supplied products that are indicated in the catalogs, price lists, circulars or other illustrative documents issued by KINEXTEC IBERICA S.L., as well as the characteristics of the samples, are purely indicative and not binding, except those cases when it is indicated as such in the sales offer or in the order confirmation.
10.2 In any case KINEXTEC IBERICA S.L. reserves the right to modify the construction details of its products at any time to improve their performance and subject to prior notification to the Buyer in the case of substantial changes (for example changes affecting: the installation methods, the interchangeability of products, etc.).
10.3 KINEXTEC IBERICA S.L. products comply with the legislation and technical standards in force in Spain, consequently the Buyer assumes responsibility for verifying any discrepancies between the Spanish standards and those of the country of destination of the products, holding KINEXTEC IBERICA S.L. not responsible
10.4 KINEXTEC IBERICA S.L. guarantees the performance of the products only and exclusively in relation to uses, destinations, applications, tolerances, etc. expressly indicated by it.

11. NON-COMPLIANCE
11.1 Any discrepancy of the Products delivered to the Customer with respect to the type and quantity indicated in the Order must be reported in writing to KINEXTEC IBERICA S.L. within five days of the delivery date. If the complaint is not communicated within the aforementioned term, the Products delivered will be considered as conforming to those ordered by the Customer

12. PATENTS AND INTELLECTUAL PROPERTY RIGHTS
12.1 For the purposes of this clause, intellectual property rights mean all intellectual property rights, whether registered or not, anywhere in the world without limitation, including but not limited to: inventions, patents, utility models, technology, trademarks, logos, designs, copyrights, databases, software (including all versions, user manuals and documents, code, and updates), customer lists, trade secrets, and know-how (hereinafter “Intellectual Property Rights”).
KINEXTEC IBERICA S.L. is the exclusive owner the Intellectual Property Rights deriving from the Products purchased by the Purchaser, rights which are expressly recognised by the Purchaser, which undertakes to respect them and to inform KINEXTEC IBERICA S.L. if it becomes aware of any infringement of the same. In this case, the Purchaser shall promptly notify KINEXTEC IBERICA S.L. and provide it with any information and assistance that may be useful to contest such claims.
12.2 The foregoing will not apply to all those products manufactured on a project, drawing, instructions and/or technical specifications provided by the Purchaser, for which KINEXTEC IBERICA S.L. assumes no responsibility for any violation of the industrial property rights of third for which the Purchaser will be solely responsible.
12.3 KINEXTEC IBERICA S.L. is the exclusive owner of the Intellectual Property Rights deriving from the Products and their communication or use within the scope of these Sale Conditions shall not give rise, in relation to these to any intellectual or industrial property right or claim of right for the Purchaser. The Purchaser undertakes not to carry out any act that is incompatible with the ownership of the Intellectual Property Rights, acting with the greatest possible diligence.
12.4 The Customer declares that:
a) KINEXTEC IBERICA S.L. is the exclusive owner of the the Intellectual Property Rights
b) will refrain from using and registering trademarks that are similar and / or confusing with KINEXTEC IBERICA S.L.’s trademarks;
c) will use Intellectual Property Rights exclusively in compliance with the instructions of KINEXTEC IBERICA S.L. and exclusively for the purposes referred to in these Sales Conditions.
12.5 If the non-fulfilment by the Purchaser of any of the obligations and/or guarantees contained in this clause should result in a claim against KINEXTEC IBERICA S.L. by third parties for violation of Intellectual and/or Industrial Property Rights, the Company undertakes to compensate KINEXTEC IBERICA S.L. for any expenses that KINEXTEC IBERICA S.L. may be obliged to pay as compensation for damages, interests, expert opinions, lawyers’ and attorneys’ fees, legal costs or for any other concept, arising from or related to the claim. As well as to indemnify KINEXTEC IBERICA S.L. for any damages that may have been caused to KINEXTEC IBERICA S.L. because of the Purchaser’s non-performance.
12.6 KINEXTEC IBERICA S.L. reserves the right to recourse against the Purchaser if it is sued for non-performance by the Purchaser.

13. WARRANTY – COMPLAINTS
13.1 Unless otherwise agreed in writing between the parts, KINEXTEC IBERICA S.L. guarantees that the Products are free from flaws / defects (except for those parts of the Products that are not produced by KINEXTEC IBERICA S.L.) for a period of one year starting from the date of delivery of the same to the client.
13.2 The warranty will not apply to the Products which defects are due to:
a) damage caused during transportation;
b) negligent or improper use of the same;
c) failure to comply with KINEXTEC IBERICA S.L.’s instructions relating to the operation, maintenance and storage of the Products;
d) repairs or modifications made by the Customer or by third parts without the prior written authorization of KINEXTEC IBERICA S.L.
13.3 Provided that the Customer’s complaint is covered by the warranty and notified within the terms referred to in this article, KINEXTEC IBERICA S.L. KINEXTEC IBERICA S.L. shall, at its own discretion, replace or repair any Product or its parts that show flaws or defects.
13.4 Complaints must be submitted in writing to KINEXTEC IBERICA S.L. indicating in detail the defects or non-conformities found within 8 (eight) days of delivery of the Products if they are obvious flaws or defects, or, within 8 (eight) days of discovery in the case of hidden defects or defects or not detectable by a person of average diligence, without ever exceeding 30 (thirty) days after delivery of the Products.
13.5 Whenever possible, the Products subject to the complaint must be immediately sent to the headquarters of KINEXTEC IBERICA S.L., or to other place that the latter will indicate in case-by-case bases, at costs and expenses borne by the Customer unless otherwise agreed between the parts, to allow KINEXTEC IBERICA S.L. to carry out the necessary checks. The Purchaser loses the right to warranty if he does not allow any reasonable control required by KINEXTEC IBERICA S.L. or if it fails to return the defective products within 10 (ten) days of the relative request.
13.6 Following a regular complaint by the Buyer, KINEXTEC IBERICA S.L., at its own discretion, may:
a) repair defective products;
b) provide free of charge to the Buyer’s office (DAP Incoterms 2010) products of the same type and quantity as those found to be defective;
c) issue a credit note in favor of the Buyer for an amount equal to the value indicated on the invoice of the returned products.
13.7 The warranty does not cover damages and / or defects of the Products deriving from anomalies caused by, or connected to, parts assembled / added directly by the Customer or by the final consumer. If, under this warranty, a defective Product or component is replaced, ownership of the replaced Product or component will be transferred back by the Customer to KINEXTEC IBERICA S.L.
13.8 In the event that the defects found on the products are not attributable to the responsibility of KINEXTEC IBERICA S.L., the costs of repairing and replacing the products will be calculated and invoiced to the Buyer.
13.9 In any case, the Customer will not be able to assert the warranty rights towards KINEXTEC IBERICA S.L. if the price of the Products has not been paid under the agreed conditions and terms, even if the failure to pay the price under the agreed terms and conditions will refers to Products other than those for which the Customer intends to enforce the guarantee.
13.10 KINEXTEC IBERICA S.L. makes no guarantees regarding the compliance of the Products with the rules and regulations of countries that do not fall within or do not belong to the European Union. No other warranties, expressed or implied, such as, by way of example, the guarantee of proper functioning or suitability for a specific purpose, is granted with reference to the Products.
13.11 KINEXTEC IBERICA S.L. will not be liable for any damage deriving from and / connected to defects in the Products. In any case, KINEXTEC IBERICA S.L. will not be held liable for indirect or consequential damages of any nature such as, by way of example, losses resulting from the Customer’s inactivity or loss of earnings.
13.12 The guarantee referred to in this article absorbs and replaces the legal guarantees for defects and conformity and excludes any other possible liability of KINEXTEC IBERICA S.L. in any case originating from the products supplied; in particular, the Purchaser will not be able to make other claims for damages and in no case KINEXTEC IBERICA S.L. may be held responsible for indirect or consequential damages.
13.13 If the Customer does not purchase the Products as an end user, he expressly acknowledges that the guarantee given by the Seller in relation to the same will in any case be limited to that described above, it being understood that any wider guarantee that may be provided for, by the manufacturer, of the Seller or any other intermediary, by applicable laws (including consumer protection regulations) will be exclusively and entirely at the expense of the Customer.
13.14 The Customer waives, against the Seller, any recourse or similar action (“Action”) relating to any guarantee, provided for by the applicable laws, wider than that given here by the Seller, and undertakes to include in the contracts of sale of the Products to buyers other than end users (and to ensure that a clause is included in any subsequent similar sales contract) by which the buyer waives, in favor of the Seller, any Action in any way connected to the guarantees on the Products.

14. COMPENSATION FOR DAMAGES
14.1 The liability of KINEXTEC IBERICA S.L., whether deriving from the execution or non-execution of the contract, from the guarantee, from an unlawful fact or whether it derives from strict liability, cannot in any case exceed the value of the product to which such liability applies.
14.2 In no case KINEXTEC IBERICA S.L. may be responsible for loss of earnings or loss of profit, or for the loss of use or technical stop of the product or of any associated machinery, for complaints of the Buyer and / or third parts relating to the aforementioned damages or for any other damage, even indirect or consequential.

15. IMMEDIATE TERMINATION CLAUSE
15.1 KINEXTEC IBERICA S.L. will have the right to terminate resolve pursuant, at any time by written communication to be sent to the Customer, the single Sale in the event of non-fulfillment of the obligations set out in the articles: (Product Price); (Payments); (Intellectual Property Rights).

16. CHANGE IN THE CUSTOMER’S FINANCIAL CONDITIONS
16.1 KINEXTEC IBERICA S.L. will have the right to suspend the fulfillment of the obligations arising from the sale of the products if the financial conditions of the Customer become such as to seriously endanger the achievement of the consideration unless a suitable guarantee is given.

17. CONFIDENTIALITY
17.1 Each party agrees and declares that it considers confidential all information, documentation, methods, organization and activities relating to the other party, or to its customers, suppliers or third parties in general, to which it has access and/or which is communicated, provided or supplied by one of the parties, or by a third party on behalf of one of the parties, in connection with the performance of the contract (hereinafter referred to as the “Confidential Information”). Furthermore, nothing in this Agreement shall be construed as creating any express or implied right and/or license in relation to the Confidential Information.
17.2 During the term of the contract and for an indefinite period, the parties undertake to scrupulously respect the duty of secrecy and confidentiality of the Confidential Information, and to use the Confidential Information solely and exclusively for the purpose of performing the contract.
17.3 The disclosure of Confidential Information shall not be understood to constitute an assignment or any right or license, explicit or implicit, in favor of the receiving party over any patents, trademarks, copyrights, industrial secrets, know-how or any other intellectual or industrial property rights that the disclosing party currently holds or may acquire in the future in relation to the subject matter of the Confidential Information disclosed. The receiving party agrees that the Confidential Information shall remain the property of the disclosing party.
17.4 All information / documentation relating to the Products or its manufacture transmitted by one party to the other party, before or after the formation of the contract, will remain the property of the party that transmits them.
17.5 The Purchaser agrees to:
a) To observe and comply with the duty of secrecy and confidentiality in respect of the Confidential Information.
b) Follow the instructions set by the disclosing party, in all matters relating to the use and treatment of the Confidential Information and may not use and/or treat such information for purposes other than those indicated or informed in advance, expressly and in writing by the disclosing party.
c) Not to use such information for competitive purposes, nor to obtain any commercial advantage, nor to use it for its own advantage or benefit, nor to share it with third parties competing with the disclosing party.
d) Not to disclose the existence of the Confidential Information or that such information has been provided to it.
e) Not to transfer, assign or communicate the Confidential Information to any third party, except when the disclosing party has so authorized in advance, expressly and in writing. In such event, such third parties shall have been informed by the receiving party of the confidential nature of the Confidential Information and shall have undertaken to keep such confidentiality in accordance with the terms and conditions of this clause, as if they were a party hereto. The receiving party shall be liable for any breach of this clause by any such third party.
f) Return or destroy (at the disclosing party’s option) to the disclosing party – within a maximum of ten (10) days from the date of termination – any Confidential Information which, after termination of the contract, may be in its possession, expressly waiving any right to retain or keep the same, unless prior written consent of the disclosing party has been obtained.
17.6 Excepted from the foregoing shall be Confidential Information that:
i. has been published prior to the date of this agreement;
ii. is already in the possession of the receiving party at the time of disclosure and is not subject to a confidentiality agreement between the parties;
iii. can be documented by the receiving party as having been independently developed by the receiving party;
iv. may be disclosed to third parties based on a written authorization from KINEXTEC IBERICA S.L.
v. that which must be disclosed pursuant to a judicial or administrative order. In this case, the receiving party shall notify the disclosing party as far in advance as possible to enable the disclosing party to take such action as it deems appropriate.
17.7 The restrictions on use and non-disclosure and the confidentiality obligations set forth in this Agreement are in addition to the restrictions imposed on the Parties by virtue of the duty of professional secrecy or by virtue of mandatory regulations, such as the Spanish Law 1/2019 of 20 February on Business Secrets, or any other provision of a similar nature.
17.8 The Parties acknowledge that any unauthorized disclosure or use of the Confidential Information may cause irreparable and significant damage and harm to the reporting party, which may be difficult to quantify.

18. MISCELLANEOUS
18.1 The assignment by the Buyer of the rights or obligations arising from the contract, without the prior written consent of KINEXTEC IBERICA S.L. will be considered void. KINEXTEC IBERICA S.L. will have the right to assign, at any time, the credits deriving from the contract to third parts, after having notified the Buyer in writing.
18.2 The total or partial invalidity of one or more clauses of these General Conditions will have no effect on the validity of the remaining clauses.
18.3 It is understood that any tolerance to violations of these General Conditions can in no way be interpreted as a renunciation to exercise the rights and / or faculties connected or consequent to them.
18.4 These General Terms and Conditions of Sale are written in the Spanish and English language. To the extent that an inconsistency exists between the Spanish and English versions of these terms and conditions, the Spanish version shall prevail.

19. COMMUNICATIONS
19.1 All communications must be made in writing. Communications to the Customer will be considered sent when the letter would have been delivered by ordinary post, or, if sent personally at the time of actual delivery and being able to prove the mailing, it will be sufficient to prove that the communication has been correctly addressed and sent to the customer address indicated in any order. Communications to the Seller will be deemed to have been submitted upon actual receipt.

20. LEGAL DOMICILE, APPLICABLE LAW AND JURISDICTION
20.1 KINEXTEC IBERICA S.L. is legally domiciled at its main office.
20.2 These General Conditions and the related supply contracts are subject to the Spanish law. For any dispute relating to or in any case connected to the contracts to which these General Conditions apply, the place of jurisdiction is Madrid, Spain.
20.3 Notwithstanding the foregoing SELLER will however have the right to act at the Buyer’s court.
Madrid, [date]

…………………………………………
(The Buyer)

Pursuant to and for the purposes of art. 5 et seq. of Law 7/1998, of April 13, 1998, on general contracting conditions, the Purchasing Party declares that it is aware of and expressly approves – having fully understood their contents – the general conditions of sale contained in this document and – in particular – the following clauses:
Art. 2 (scope of application); art. 3 (conclusion of the contract); art. 5 (payments); art. 7 (retention of title); art. 8 (terms of delivery and transport); art. 9 (transfer of risk); art. 13 (warranty-claims); art. 14 (compensation for damages); art. 15 (express termination clause); art. 16 (change in the Client’s financial conditions); art. 18 (various); art. 20 (legal domicile, applicable law and jurisdiction).

Madrid, [date]

…………………………………………
(The Buyer)